i Review Petition of Kehar ingh filed before the Hon i ble upreme Court of India

t

' iTHMALA I, MP> Matbur Lan*t NEW DSLHI-11000L * a

I r

T * ft

1 IN THE SUPREME COURT OF INDIA of dealing with the contentions of the law and CRIMINAL APPELLATE JURISDICTION fact raised on behalf of the Petitioner at the REVIEW PETITION (CRIMINAL) hearing of his appeal. The net result of the NO OF 1988 totality of the errors hereinafter pointed out is IN THE MATTER OF: that the Petitioner is being deprived of his life PETITION UNDER ORDER XL OF otherwise than in accordance with the proce­ THE SUPREME COURT RULES, 1966: dure established by law. The Petitioner has AND been dealt with as if Article 21 of the Constitu­ IN THE MATTER OF: tion does not exist in so far as he is concerned. ARTICLE 137 OF THE CONSTITU­ B. That the first contention of the Peti­ TION OF INDIA: tioner was that his trial was unconstitutional AND and void inasmuch as without his consent and IN THE MATTER OF: against his wishes the trial was held inside the JUDGEMENT OF THIS HON'BLE Tihar Jail. COURT DELIVERED BY HON'BLE (a) In dealing with this contention His MR. JUSTICE G. L. OZA, HON'BLE Lordship Mr Justice Jagannath Shetty has" MR. B.C. RAY AND HON'BLE. MR. given the following picture of the place where JUSTICE JAGANNATH SHETTY the trial was held in Tihar Jail:- DATED 3RD AUGUST, 1988, IN CRI­ " First, let us have an idea of the MINAL APPEAL NO. 180 OF 1987 building in which the trial took place. The ENTITLED "KEHAR SINGH - Vs. - Office Block of the Jail Staff was used as the STATE (DELHI ADMINISTRA­ Court House. It is an independent building TION)"; located at some distance from the main Jail AND complex. In between there is a court-yard. This IN THE MATTER OF: court-yard has direct access from outside. A KEHAR SINGH SON OF THE LATE SHRI visitor after entering the court-yard can ATMA SINGH, INDIAN ADULT, CON­ straight go to the Court House. He need not FINED IN THE CENTRAL JAIL, TIHAR, get into the Jail complex. This is evident from NEW DELHI. the sketch of the premises produced before us. ...PETITIONER It appears the person who visits the Court . House does not get any idea of the Jail VERSUS complex in which there are Jail Wards and STATE (DELHI ADMINISTRATION) .Cells. From the sketch, it will be also seen that ...RESPONDENT. the building comprises of a Court-hall, Bar room and chamber for the Judge. The Court- hall can be said to be of ordinary size. It has The Hon'ble the Chief Justice of India and seating capacity for about fifty with some more His Companion Justices of the Hon'ble space for those who could afford to stand. The Supreme Court of India, New Delhi. accused as under-trial prisoners were lodged at The humble Petition of the Petitioner Jail No. 1 inside the Jail complex. It was at a above-named. distance of about 1 km. from the Court House. MOST RESPECTFULLY SHOWETH: For trial purposes, the accused were trans­ i 1. The Petitioner is seeking a review of the ported by van. In the Court hall, they were judgement of this Hon'ble Court dated 3rd provided with bullet proof enclosure. August, 1988, in Criminal Appeal No. 180 of 57. This is a rough picture of the Court 1987 on the following amongst other House where the accused had their trial." GROUNDS: (b) To say the least this is a misreading of the evidence in the case. It cannot be> denied GROUNDS • A. That there is more than one error that access to the place of trial could only be apparent on the face of the record in the matter had by crossing three gates, one at the com-

* %

2

/ pound of the Jail guarded by sentries and entries about their arrival and depar­ Police, another the main doof of the jail which ture in a register maintained. remains permanently guarded and locked and (iii) Nor do any special doors have to be opened only to permit entry at the discretion of opened for them by anybody. the jail authorities and, third, the door of the (iv) With a slight variation the position in room in which the trial was actually held the Supreme Court is not much diffe­ outside of which were the usual security rent. apparatus and registers to be signed by the (v) Besides it is a serious error of law to visitors. These three doors are shown on the regard a Court of Appeal as a trial sketch attached to the affidavit of Mr R. P. court. | Kochar, Assistant Commissioner of Police, (e) That on this point the error committed who was the Investigating Officer in this case. by His Lordship Mr. Justice G. L. Oza is still It was admitted in the affidavit as. indeed it is more patent. The learned Judge seems to be noticed by His Lordship Mr Justice Jagannath under an erroneous impression that "the Shetty in Paragraph 57 that every visitor had to Office block where there was an approach, seek permission and when the permission was people were permitted to reach and the trial granted it was subject to usual security checks. was held as if it was held in an ordinary Representatives of the press and the. news place....". agencies had asked for permission and the (f) The Third learned Judge His Lordship permission had been granted to them on Mr. Justice B. C. Ray does not independently certain terms. Similarly some ladies who advert to this matter though he fully concurred attended on the 21st September, 1985, had to with the views expressed by both the Judges. obtain permission and they had to make entries (g) That it shocks the sensibility of a in the jail register both at the time of entry and common person in the street to be told that the exist. It was common ground that on applica­ trial in the Patiala House Court Room is not tions being granted gate passes were prepared different from the trial held in Tihar Jail. It is and issued. This happened to some law stu- submitted that the law cannot be that divergent dents as well as who wanted to attend the from the common man's perceptions. Even the proceedings. authorities cited in the judgement itself show (c) The Petitioner submits with respect that it is impossible to create conditions in a jail that requiring an application for permission, which would convert the jail trial into an open the grant of permission and the necessity of a trial. This was pointed out by the Calcutta gate pass were totally inconsistent with the High Court in Prasanta Kumar Mukherjee's right to attend. It is not as if anybody who case (AIR 1952 Calcutta 91). The High Court cared to attend had merely to go through the in that case held the jail trial irregular and set security procedures as were installed for exam­ aside the conviction. ple in the High Court and also in the Supreme (h) That the learned Judges failed to Court. realise that Section 327 of the Code uses the (d) That it is grossly unjust and unrealistic expression "shall be deemed to be an open to suggest that the accused had a public trial or Court." The section thus creates a fiction that what happens in the High Court and the which widely departs from reality. A public Supreme Court is what was happening in the trial in fact is the requirement of Article 21 Tihar Jail. It is difficult to appreciate how this which is not satisfied by a fictional open trial Hon'ble Court had glossed over the following created by the deeming provision in Section vital differences: 327 of the Code. * (i) That persons who go to the High (i) That it makes a serious difference Court do not have to make an ap­ whether a right to open trial is guaranteed by plication to anyone for permission. Article 21 or whether the accused can insist (ii) They do not have to disclose their only on that much openness as the Code of identity nor do they have to make Criminal Procedure chooses to bestow. This 4*

3

• • Hon'ble Court has in dealing with this aspect of or the Original Side Rules of the High Court of the matter committed more than one patent Bombay. The judgement expressly approved error of law. of Scot-v-Scot, 1911-13 All ER 1, the House of (j) In the first place, the learned Judges of Lords judgment in England and the Privy the High Court had come to the conclusion in Council judgment in Mcpherson - v - favour of the Petitioner that the guarantee of Mcpherson, AIR 1936 P.C. 246. an open public trial arises out of Article 21. Both these judgments hold that an open There was no appeal.by the State and this public trial is inherent in the concept of a trial. finding on a point of Constitutional law ren­ It is uncontrovertible that in India liberty dered by a Full Bench could not be upset by cannot be taken away for crime committed the Bench of three Judges which heard this except by a fair trial. That fair trial must be matter. It was pointed out to this Hon'ble open public trial. Court that finding can only be reversed by a (1) That the Hon'ble Bench has failed to Constitution Bench in view of Article 145 (3) deal with the following submission pressed of the Constitution of India. Yet the leading strongly at the hearing. An open trial is one judgement by His Lordship Mr. Jagannath which is held at a place to which every member Shetty ignored this finding and proceeded to of the public whether a journalist or anyone upset this in paragraphs 37 and 38 of his else can freely enter and re-enter as of right judgement. The finding recorded by Mr. Jus­ and remain there as long as the trial is in tice Shetty is "that no such right has been progress. If a member of the public has to guaranteed to the accused under our Constitu­ apply to the Court for permission to enter and tion." However, His Lordship Mr. Justice G. obtain permission as a condition of entry, the L. Oza arrived at a diametrically opposite right of public access will have been denied and conclusion in Paragraph 25 of His judgement: the trial ceases to be an open public trial. It is "It is very clear that Article 21 contem­ not an open public trial if the Court has created plates procedure established by law and in a class of privileged visitors who had priority my opinion the procedure established by and, therefore, exhausted wholly or partly the law was as on the day on which the available accommodation. Public access Constitution was adopted and therefore it assumes equality of rights of all in matters of is not so easy to contend that by amending attendance and the only manner of ensuring the Criminal Procedure established by law this is to have a proper queue and 'first come indicated in Article 21 could be taken first served' as the basis of entry. There is no away." open trial and public access is denied if even He held that Article established by law on those who are allowed to enter are to be 26th January, 1950. These two views, with subjected to further scrutiny by the jail staff respect, cannot be reconciled. And yet, the who were authorised to put such restrictions as third learned Judge, His Lordship Mr. Justice regards security check-up, production of B. C. Ray agreed with both. This itself is a accredition cards or identity cards as they serious error of law. considered necessary. If security inside the (k) It is submitted that judgements of the Court-room is the consideration — and, Con­ Supreme Court which were binding on the stitutionally there can be none other at all — present Bench have adopted the principle of the only restriction that can legitimately be put "open public trial" without spelling it out from is no arms, missiles or dangerous substances of any provision in the Civil or Criminal Proce­ any kind to be carried into the Court Room. A dure Code. Trial in the judicial system of India metal detector or physical frisking would b$ in means open public trial. Mirajkar's case (1966) order. Apart therefrom any insistance on 3 SCR p. 746, decided by a Bench of 7 Judges, compulsory discovery of identity is repugnant expressly noticed by His Lordship Mr. Justice to the Constitution and destruction of free Ray in Paragraph 14, did not spell out this right access. When any member of the public enters from anything in the Code of Civil Procedure a normal court room he is not to identify 4 himself. A restriction on the press or any Procedure, 1973 the Hon'ble the Chief Justice member of the public not to bring a tape- and the Judges of this Court have been pleased recorder in the Court destroys the purpose and to order that the trial of the Sessions case efficacy of access. A person who attends may relating to F.I.R. No. 241/84, u/s 302/307/34/ well want an accurate record of the proceed­ 120-B IPC and 27 of the Arms Act — State Vs. ings including subtle nuances of sound and Satwant Singh and others, shall be held in the intonation and is entitled to use a tape recorder Central Jail Tihar, according to Law." which makes no sound and produces no dis­ It is impossible to convince the common turbance of any kind. All these considerations man thaf this notification fixes a second ordin­ have been ignored and not dealt with by this ary place of holding trials by the Court of Hon'ble Court. The record would show that Sessions. To a common man it obviously this contention was made. •? changes the venue of a particular trial. Both in (m) That a still further error too manifest fact and in law it is the usurpation by the High to be missed is that the venue of the trial and Court in its administrative capacity of a judicial the manner in which access came to be power vested in the trial court either under regulated, did not take place as a result of Priviso to Section 327 or under a possible exercise of discretion by the trial Court under inherent power. the proviso to Section 327 of the Code, but as a Even His Lordship Mr Justice Shetty did result of binding order issued by the High not so read it. His Lordship took the view of Court purporting to be under Section 9(6) of Patkar J., in AIR 1931 Bombay 313, that under the Code. The House of Lords, the Privy this sub-section both a general as well as a Council and the Supreme Court of India in the specific order could be made. (See paragraph Mirajkar's case recognised inherent power to 31). The two views are diametrically divergent make extremely limited exceptions to the rule and irreconcilable. His Lordship Mr Justice of open public trial. This inherent power Ray took third view different from both though resides in the trial Court. It is a judicial power it is somewhat difficult to follow what the * and can only be exercised after hearing both learned Judge intended to lay down: to quote the parties. In fact, the proviso to Section 327 the exact words of the learned Judge in requires the consent of the prosecution as well Paragrah 2: "Thus the High Court can fix a as the accused. place other than the Court where the sittings (n) That once again it is a manifest error are ordinarily held if the High Court so notifies for the Hon'ble Bench to have decided that for the ends of justice." Section 9(6) conferred such a power on the (o) It is manifest that there is no majority High Court. In fact the judgments delivered on view on the construction of Section 9(6). The this aspect of the matter are contradictory and learned Judges should have referred the matter irreconcilable. His Lordship Mr Justice Oza to a larger Bench. accepted the Petitioner's argument that "Sec­ C. That the Hon'ble Bench has unwittingly tion 9(6) nowhere permits the High Court to caused irreparable damage to the Petitioner by fix the venue of trial of a particular case at any not considering and disposing of his contention place other than the place which is notified as which was to the following effect: the ordinary place of sitting" (See paragraph "That the right of open trial from the 21 of Mr Justice Oza's judgment). But the point of view of the accused arises under learned Judge, further held that the notifica­ Article 21. The right of every member of the tion in question did not appoint the venue of a public to attend a criminal trial arises out of trial of a particular case but only a second Article 19. Reasonable restrictions can be put ordinary place of sitting. It is submitted that on these rights only in the interests of public this is not a fair way of reading the notification order and to prevent the trial from being at all. The said notification reads as under:- frustrated by violent distrubance. These res­ * " In exercise of the powers conferred trictions can only be imposed by law which by Section 9(6) of the Code of Criminal itself is reasonable. Law which does not pre-

« * | scribe a hearing before the restrictions are from the trial Court or the accused. Plainly it imposed is unreasonable and void." did not act suo moto but at the instance of one The record would show that the contention- party without hearing the other. tion was made but unfortunately not dealt with 3. The High Court by making the order or disposed of. J under Sec. 9(6) was not only defeating the A detailed argument was submitted in the valuable right of the accused recognised in shape of written note after the oral argument • Section 9(6) itself but also rendering super- i on this point. The entire note is herebelow fluous and pre-empting the exercise of discre- I reproduced: tion under the proviso to Section 327. "IN THE SUPREME COURT OF In fact as is apparent from the letters INDIA written by the government that the order was j CRIMINAL APPELLATE JURISDIC­ being sought for holding of the trial in a place TION where rights of the public under Section 327 CRIMINAL APPEAL NOS. 180 & 181 OF would for all practical purposes be defeated i 1987 without the proviso being invoked and applied, i Kehar Singh etc. ... Appellants 4. The administrative order of the High -versus- Court therefore without notice or hearing State (Delhi Administration) ... Respondent. curtailed the right of the public under Artcile Written Submissions on behalf of the 19(l)(a) and Article 19(l)(b) of the Constitu­ Appellants. tion of India and the right of the accused under (These are in addition to what has been Article 21 of the Constitution of India. This argued orally). administrative order was regarded as binding 1. The order under Section 9(6) Cr.P.C. by the trial Court as well as the High Court was made ex-parte by the High Court without when it was sought to be challenged at the any notice to or hearing by the accused. It was hearing of the appeal. made on the basis of statements contained in 5. It has been held in the State of Madras * the two letters from the government dated 7th Vs. V. G. Row (1952) SCR 597, that the February, 1985, and 8th May, 1985. The vesting of authority in the executive govern- j relevant circumstances arising out of these two ment to impose restrictions on an imporant | letters are: (i) that remand proceedings had constitutional right (in that case one under Art. earlier been directed to be held in Red Fort 19(l)(c)) without allowing the grounds of such and in Tihar Jail in view of the law and order imposition both in their factual and legal implications and danger to the lives of the aspects to be duly tested in a judicial inquiry is accused; (ii) security of the accused and the a strong element which must be taken into witnesses would not warrant the holding of the account in judging the reasonableness of the prceedings in open court; (iii) the proceedings restriction imposed. An order in exercise of | have necessarily to be held at a place where such authority will rarely receive judicial entry can be adequately regulated and danger approval as a general pattern of reasonable ! to the lives of the accused and the witnesses be restrictions on fundamental rights. What is true minimised. There is similar danger to the of the executive also applies to the High Court Judge and police officers. Holding of the trial in its administrative capacity. The principles of inside Tihar Jail should therefore be directed. , Row's case (supra) has been affirmed in I several cases and the latest one is the Express 2. It is plain that the State was making this NeWspapers case (1985) 2 SCR 287 at page i request to the High Court to avoid achieving 350. the same result by consent of the parties and the trial Judge under the second part of Section 6. After Ridge -v- Baldwin, 1964 A.C.- 9(6). Neither the Judge nor any witnesses nor 40=1963(2) All E.R. 66, the distinction be­ any accused had expressed any danger to their tween administrative orders and judicial orders l lives or asked for any special security. The has cease to exist so far as the AUDI ALTER­ High Court did not invite any comment either AM principle is concerned. The principle has ! 6 been affirmed in scores of cases too numerous this provision shows that no hearing was conte­ to be cited. In Menaka Gandhi's case (1978) 1 mplated by the Legislature. Therefore, the SCC 248, (Head Note 5 at page 253) the Legislature did not expect that under Section principle is thus stated: 9(6) anything will be done which would affect "Any procedure which permits impair­ the rights, interests or legitimate expectations ment of the constitutional right to go abroad of anyone. In other words the power of the without giving a reasonable opportunity to High Court under Section 9(6) must be show cause cannot but be condemned as unfair deemed to be exercisable only at a stage and in and unjust and hence there is, in the present circumstances in which nobody has acquired case, clear infringement of the requirement of the right to have his trial conducted at a Article 21. Even when the statute is silent the particular place. law may, in a given case make an implication 10. It is only parties to a specific case who and apply the principle of audi alteram partem. can insist on the location of the court not being The principle of the maxim "which mandates changed to their prejudice. The High Court's that no one shall be condemned unheard is part power is exerciseable only to fix the venue for of the rules of natural justice. When the test of the entire public but not for such members of applicability of the doctrine of natural justice is the public as by reason of their becoming that for fairness in action an opportunity to be accused have acquired an interest in the veftue heard should be given to the affected person, of the trial. there can be no distinction between a quasi- 11. It is true that what the High Court judicial function and an administrative func­ fixed is the ordinary place of sitting. It is tion. The aim of both is to arrive at a just equally true that in some cases therefore the decision and if the rule of natural justice is Court will not sit at the ordinary place. But the calculated to secure justice, or to put it extraordinary or the non-ordinary or the spe­ negatively, to prevent miscarriage of justice, it cial place can only be fixed under the later part is difficult "• to see why it should be applicable of Section 9(6) by the consent of all parties. to quasi-judicial enquiries only and not to an The use of the word 'but' after the word administrative enquiry. Sometimes an unjust 'specify' is conclusive. It is not permissible to decision in an administrative enquiry may have strain the plain language of the statute to avoid far more serious consequences than a decision inconvenient results in a particular case. The of a quasi-judicial enquiry and hence the rules Court ought to bear in mind that however of natural justice must apply equally in an inconvenient the result of setting aside this trial administrative enquiry which entails civil con­ hard cases usually make bad law. sequences. The law must be taken to be 12. The correspondence between the gov­ well-settled that even in an administrative ernment and High Court does not even suggest proceeding which involve civil consequences the that the so called object of security of Judge, doctrine of natural justice must he held to be witnesses, accused or police officers could not applicable/' be achieved except by holding the trial in an (Emphasis added) inherently inaccessible place like the Tihar Jail 7. In making the order in question even with its distant location, forbidding gates, administratively the High Court was bound to armed Sentries, name recording registers. The hear and the want of hearing makes the order a appeal was heard in the High Court and has nullity. been heard in this Court for long periods. 8. If it is held that Section 9(6) allows the Never once did any incident take place which High Court to pass such orders without a endangered anybody's safety. The Only safe­ hearing the Section itself is ultra vires. The guard has been used is the contrivance that only way to avoid the Section itself being detects weapons. This surely could have been declared a nullity is to read the right of hearing done even in the trial court. Security was as implicit in the Section. manageable by precautions other than holding 9. It is true, however, that the history of trial in jail. By not hearing the accused, he 7 could not demonstrate that what was being and hassles of obtaining gate passes etc. done was unnecessary. F. The three learned Judges are unani­ 13. The security threat is absurd. The two mous that the conclusion of the Courts below alleged assailants Satwant Singh and Beant were based partly inadmissible evidence and Singh were not shot at by a mob but according partly on circumstances which are not justified to the prosecution by security personnel em­ and which are not borne out by evidence on ployed at the Prime Minister's house. They record.' A fresh trial should have been the were not shot at by other conspirators. There necessary conclusion of this Court. An accused was no other danger of any kind to the accused person is entitled to a fair trial in the original who preferred to be tried in open Court. There court and a fair hearing in the Appeal Court. was much more danger to Judge, witnesses and Both these were denied to him on the findings police officers while reaching jail or going away of this Hon'ble Court itself. The fact that he from jail than going to or leaving Patiala has received a hearing in the final Court does House. It is absurd to suggest that the danger not afford him the benefits of procedure arose only when the trial was on." It is established by law. On the basis of the 7 Judges regrettable that the judgement does not show judgment in Antulay's case, he is entitled to any application of mind to these aspects of the each of these safeguards. After that judgement matter. Where the Petitioner is Fighting for his it is obligatory for the Hon'ble Supreme Court life he cannot be blamed for concluding that he to order a fresh trial particularly where the is being hanged without a hearing. Failure to accused himself insists upon it and did seek it in * consider his submissions is even worse than no express terms. hearing. G. While dealing with the case of the D. That strong authorities from the Sup­ present Petitioner His Lordship Mr Justice Oza reme Court of United States were cited which declares: 'The finding of guilt recorded by the established two propositions: (1) that denial or High Court against Kehar Singh is a mixture of dilution of public trial can only take place after both relevant and irrelevant evidence adduced hearing the parties concerned; and (2) only by the prosecution." where no other alternative method would His Lordship Mr Justice Shetty also pro- secure the ends of justice. This aspect of the ceeded to deal with the Petitioner's case by matter has not been considered at all. first eliminating the irrelevant evidence against E. That there is a further serious error of the Petitioner. Moreover the learned Judges law apparent on the record inasmuch as having held the evidence of PW-68 Inder Bir Singh to accepted Scot -v- Scot and Mcpherson -v- be false and unreliable, so also the evidence of Mcpherson as binding it could not but be held Prosecution Witnesses No. 31, 32 and 33, as that there was no burden upon the accused/ indeed the star prosecution witness Amarjeet Petitioner to show that some members of the Singh, P.W. 44. public were actually denied access. What is The Petitioner has thus been denied the necessary is that there is a reasonable possibil­ benefit of a trial and a hearing of an appeal on ity of some having been turned away. The the basis of relevant material only. If the finding of the Hon'ble bench is inconsistent Courts below had not been influenced by and self-contradictory. It is negatived by the irrelevant and false material, they might well very authorities which are approved. The Privy have acquitted and the acquittal would never Council in Mcpherson's case set aside the have been reversed under Article 136. verdict because the Judge held his Court in the; The Petitioner who has been denied two Judge's Library where unwittingly on the door valid steps in the judicial process cannot be was a small sign board exhibiting the word said to be hanged in accordance with law. 'Private'. This was a much weaker inhibition H. That the accused/Petitioner has.been than the ones created by the awe inspiring and condemned in a manner contrary to Articles 14 forbidding appearance of Tihar Jail with its and 21 of the Constitution of India. The action machine guns, armed sentries, padlocked gates of the State in denying to him the access to the \

8 Thakkar Commission Report and the state­ mention. ments of witnesses common to the trial and the L. That it is unfortunate that the Hon'ble Commission has put the Petitioner to a serious Bench has not considered the Petitioner's main disadvantage. The prosecution knew a lot but argument to the effect that a criminal trial is the accused could not know it even though he governed by the Evidence Act. The Thakkar tried. Commission Report could only be withheld I. That the Hon'ble Bench has caused under Sections 123 and 124 of the Indian untold prejudice to the Petitioner by shutting Evidence Act if the conditions of those Sec­ out from his scrutiny the Thakkar Commission tions were satisfied. Report. Any document which may contain M. That it is still more unfortunate that valuable clues which an accused might pursue the Hon'ble Bench has failed to deal with the and convert into admissible evidence at a trial submission made on behalf of the Petitioner must be furnished to him. The attention of the that if the State on the ground of public interest Hon'ble Bench was expressly invited to well finds it necessary to keep back relevant mate­ known principles laid down in 1973(1) SCR rial from an accused in a criminal trial the 697, and the decision of the United States consequence must be the failure of the pro­ Supreme Court in Jenk's case 356 US 657 = 1 secution and the acquittal of the accused. The Lawyers Edn 2d p.1103, followed in Patricia Australian case of Sankey -v- Whitlam Reynold's case 354 U.S. 1 = 97 L. Ed. 2d approved by our Supreme Court in the Judges' p.727. It is regrettable that the Honb'ble case, Janks and Reynold's casein the Supreme Bench has not adjudicated on these arguments Court of the United States established this at all. great principle of criminal law. If the State J. Section 6 of the Commission of Inquiry wishes to safeguard the larger public interest Act does not bar the use of the report for this then it must consent to individuals not being purpose. It is surprising that after having held prosecuted or punished. The Hon'ble Bench that Section 6 of the Commission of Inquiry has not even attempted to answer this very Act bars the use of common depositions serious argument. against the witnesses Mr Justice Shetty pro­ N. That on factual merits the case against ceeded to say that "it is strictly unnecessary to the Petitioner is a case which an English Judge fall back on the other contentons raised by would withdraw from the Jury. In other words, counsel for the appellants." To say the least, it is a case of no evidence. This Hon'ble this is an amazing way of disposing of a serious Court/Bench has convicted the Petitioner on argument which has nothing to do with Section the basis of the following circumstances: 6. (See Para 106 of Mr Justice Shetty's judg­ (i) The Ujagar Sandhu incident of ment). September, 1984. The Petitioner invited Beant K. That even in dealing with the Petition­ Singh and his wife Bimal Khalsa, P.W. 65 to er's contention under Section 6 it is surprising the birthday celebrations of a grand child. The that the learned Judges ignored the arguments entire celebrations were video-taped but some that previous statements can be used some­ provocative speeches and songs were also times for refreshing the memory of witness delivered and sung. who out of sheer forgetfulness cannot recall a His Lordship Mr Justice Shetty acknow­ fact favourable to the defence. All cross- ledges that there is no evidence that Beant examination which points out honest mistakes Singh and his wife were deliberately taken by in a witness's testimony on unconscious embel- Kehar Singh to expose them to provocative lishments or distortions, in his story is not Bhajans. In fact the learned Judge in fairness challenge, to his credibility or use against the ought to have acknowledged that the speeches witness and Bhajans might have come as a surprise to These matters were prominently placed Kehar Singh himself or perhaps such speeches before the learned Judges at great length. It is and Bhajans had become an order the day. regrettable that they do not even find a passing A finding before it could become a link in

• fr

9

- the chain of circumstantial evidence has to be consider what Petitioner Kehar Singh could firm, clear-cut and precise. Instead what one have told Beant Singh on this occasion which finds is a following strange observation: could further the objects of conspiracy. Kehar "There may not be any such evidence, but it Singh was a mere clerk, may be with a religious may not be non-sequitur when one takes an Bent of mind. Beant Singh was a sturdy uninvited guest to such function in the cir­ Sub-Inspector of Police. The prosecution case cumstances of this case." To act on such a itself was that as early as the 1st week of July, weak, unclear and ambiguous finding is to 1984, Beant Singh was in a very angry mood ignore the basics of criminal jurisprudence. and in the first week of August, he had declard (ii) The Second incident relied upon by that he would not let Mrs. Indira Gandhi His Lordship Mr Justice Shetty is the alleged unfurl the flag on the 15th of August, 1984. visit of the Petitioner to the residence of Beant (Whether P.W. 44 is a reliable witness or not, Singh on the 17th of October, 1984. this was the prosecution case from the begin­ All that Bimal Khalsa (PW 65) deposed ning). was that on that day Beant Singh and Kehar The prosecution case further was that in Singh were together on the roof of the house the first week of October, 1984, Beant Singh for 15 to 18 minutes. The witness was not with had already won over Satwant Singh. It is them on the roof. She did not hear what they difficult to believe that Kehar Singh was egging said or what they did. It is amazing that Mr on Beant Singh on the 17th of October, 1984, Justice Shetty concludes. "It plainly indicates to kill Mrs. Indira Gandhi. The name of Mrs that Kehar Singh and Beant Singh were com­ Indira Gandhi was not over-heard by Bimal bined and conspiring together." Khalsa on the 17th of October, 1984 or any From a conversation which no one heard other day. to find conspiracy to kill is height of fantasy, This Hon'ble Court, with respect, com­ not appropriate to the hearing of an appeal in mits a serious error of approach when it does the Supreme Court in a criminal cause. not even advert to the following admission of In the evening Kehar Singh and Satwant Bimal Khalsa: * Singh are said to have taken meals at Bimal "Q. The determination of your husband to Khalsa's house. The prosecutor asked a ques­ assassinate Prime Minister Indira Gandhi was tion about this: his and on his own initiative, even you had "Q. While you were cooking meals in the tried to persuade him not to do it, he would not kitchen Satwant Singh and Kehar have agreed to your persuation? Singh were talking to each other on Ans. It is correct that determination was low tones? his and of his own accord but he never Ans: How could I know when I was in the disclosed about it to me at any time. I do not kitchen." know if on my knowing the same and on my It is neither fair nor legal to conclude any persuading him not to do so, he would have hush hush conversation from this evidence. agreed to my suggestion. One thing is certain that there was not a tittle Q. You are proud of your husband? of evidence to show that murder was discussed. Ans. I am proud of him and of what he has The whole of Paragraph 159 of the judgement done," is a process of reasoning contrary to any The witness further said: "After destruc­ acceptable notions of criminal law and juris­ tion of Akal Takht and Blue Star Operation prudence. when Beant Singh told me that he will become The learned Judge forgot in this context Shaheed I did not enquire from him in which that Bimal Khalsa herself took Amrit on that manner. I did not enquire from him whom he very day i.e. 17th of October, 1984 and the was holding responsible for demolition of Akal Petitioner's wife had gone with her. The talk Takht and Blue Star operation and he and all could as well be about somebody taking Amrit. Sikhs used to hold Government responsible for The learned Judges do not pause to it and Mrs Indira Gandhidid not alone consti- 10 *

• tute the Government. I did not take his saying day at 4.30 a.m. the Petitioner wanted to to become Shaheed seriously. attend the morning Kirtan. He and JBeant My husband used to Joke also and he once Singh attended the Kirtan which is held early at told me about his becoming Saheed. he never 4.30 in the morning. The witness, the ladies, joked prior thereto." and the children joined them at 8 a.m. At 11. In respect of the incident of 17th of a.m. they all came back, Beant Singh alone October, 1984, it was strongly argued that stayed in the temple. The primary purpose of proper attention should be paid to the confes­ the visit was in connection with the marriage of : sion of accused No. 1 Satwant Singh, Ext. the Beant Singh's sister-in law to the witness, a 11/C. In this confession Satwant Singh states purpose which was corroborated by Bimal that in consequence of an invitation given to Khalsa. It is unfair that such vital evidence in him on the 16th of October, 1984 he went to favour of the defence should go unconsidered. It Beant Singh's house on the 17th. This is how is a manifest miscarriage of justice. he described as to what happened theie: There is nothing in the temple visit to "He was then not present, but after a suggest that the Petitioner was egging on Beant shortwhile he reached there. He told me that Singh to commit murder. he had invited me at his residence for the (iv) The fourth circumstance relied upon is reasons to finalise some plan to do away with that Beant Singh took Amrit on the 14th of the P.M. I took his assertion as a joke. In the October, 1984 at the instance of the petitioner. meanwhile his wife came over there and he Mr Justice Shetty acknowledges in Paragraph became silent. At this I sought his leave. 168 that there is no substantive evidence of any Thereupon, he enquired as to when I would be of the two facts, namely, whether Amrit was at meeting him again. I met him again at 7 p.m. all taken on the 14th of October, 1984 by Beant next day in Gurudwara Bangla Sahib. Again Singh or whether it was taken at the instance of said the time was not 7 p.m. but it was 5 p.m., the Petitioner. Strangely and with all the no talks were held between us. respect that one'has for this Hon'ble Court, the * I proceeded on leave on 19th October and observation made: 'The fact, however, re- returned on 24th. Both of us i.e. I and Beant mains that Beant Singh took Amrit on October Singh took Amrit on the 24th itself..." Satwant 14, 1984," is difficult to explain. How can one Singh then deposed that he had agreed to conclude that because Kehar Singh and his become a party to the conspiracy only on the wife were present at Bimal Khalsa's Amrit 24th of October, 1984. It is patently absurd to taking on the 17th,-he was present on 14th at suggest that the Petitioner had anything to do Beant Singh's Amrit ceremony. Incidentally with any murder talks with either Beant Singh Beant Singh's Kara and Ring, according to or with Satwant Singh. The failure of this Bimal Khalsa were found from her house. Hon'ble Bench to consider this submissin is a (v) That simiarly, paragraph 170 of the grave miscarriage of justice. judgment in which the fifth and last circumst­ (iii) The third circumstance relied upon to ance is mentioned by the learned Judge is pure convict the Petitioner was the alleged visit of surmise and conjecture. P.W. 59 was obviously the Beant Singh's family alongwith the Peti­ a false witness. The learned Judges make no tioner and his wife to Amritsar on the 20th of attempt to appreciate his evidence at all. October, 1984. Except that for a while the two O. That the totality of the circumstances males were away from their wives, nothing relied upon by the Hon'ble Bench are either sinister happened at the temple. It is regrett­ not proved or do not support the inference of able that there is no application of mind to the guilt. It would be a gross miscarriage of justice evidence of P.W. 53. Kehar Singh and Beant to hang anyone on such evidence. Paradoxical­ Singh stayed at his house on this occasion along ly the judgement of this Court suffers from the with their wives and three children. The very infirmities which were found in the witness and another friend and the families judgments of the Courts below. went to Darbar Sahib with him. On the next P. That ah the circumstances relied upon •

0 11 ultimately emanate from the evidence of PW- that the final offence was committed in con­ 65 Bimal Khalsa. All the learned Judges are sequence of the Petitioner's abetment. The agreed on this. The witness was available to the maximum sentence that could be passed under police right from the 31st of October, 1984 and the circumstances is a sentence of 7 years under had been taken to the valodrome an illegiti­ Sec. 115 IPC. This submission was strongly mate interrogation centre and torture chamber pressed upon the learned Judges of the High at 4 a.m. on the 1st November, 1984. Even Court but there is no reference to it in the when she was brought back a guard was posted impugned judgment." outside her house. She was again taken the In. this paragraph the Petitioner com­ next day to the valodrome. She was interro­ plained that the Judges of the High Court have gated by men police officers but lady police not dealt with this contention. It is regrettable officers were also present. Neither the witness that the same error has taken place in the nor any police officer suggested that she was highest court. desolate or tung-tied. In fact she told the police R. That even if it was a case of either that on hearing that her husband had fired at death or life imprisonment the appropriate Mrs Indira Gandhi she was so angry that she sentence was life imprisonment and not death. did not care to find out whether he was alive or This Hon'ble Court/Bench has failed to realise dead. She went to the Valodrome for the next that the validity of the death sentencfe was two months. She was kept incommunicado and sustained by the Constitution Bench and that a guard was posted all the time at her resi­ too by a majority, Mr Justice Bhagwati dissent­ dence. The witness never claimed that she was ing on the basis that its imposition will not be not in a position to make a statement for two arbitrary or whimsical but in accordance with months. Strangely this Hon'ble Court has the guidelines. The Constitution Bench has recorded a finding that "she ough* to be pointed out that where murder has been allowed time to compose herself." This finding committed because of misguided religious im­ is without evidence and is productive of miscar­ pulse a sentence of death cannot be imposed. riage of justice. This by itself should have called for the lesser Q. That the sentence of death imposed sentence. But in this case there was an addi­ upon the Petitioner is without jurisdiction. tional circumstance that the sentence of death This argument was not only prominently made had been hanging over the Petitioner for more but it had been formulated in detail in the than two years. On the judgement of Mr memorandum of appeaHn the following terms: Justice Chinnappa Reddy this itself was "(UU) That, equally indefensible is the enough to take away the sentence of death. It sentence of death passed upon the petitioner. was pointed out to this Hon'ble Bench that The courts below had no jurisdiction to pass a here both the circumstances co-exist. A sent- sentence of death. Under Section 120-B IPC, a ence of death is unfair, illegal and unconstitu­ conspirator is punished in the same manner as tional. It is a denial of Article 14 and Article if he had abetted suph offence. The abetment'is 21. The personality and the status of the punishable either under Sec. 109 or Sec. 115 deceased are irrelevant. In English law it IPC. It is only if it is punishable under the would be clearly a case of diminished responsi­ former, that a sentence of death could be bility. passed. Section 109 IPC was mentioned in the S. That for all the manifest errors of law charge sheet but no charge was framed under and fact the judgment upholding the conviction Sec. 109, IPC nor was a charge under Sec. and sentence merits to be reviewed. 120-B read with Sec. 109 IPC framed. In fact, it T. The points raised are important and the is the finding of the High Court that deceased case is of peculiar national importance. It Beant Singh was determined to kill and he had would add to the feeling of injustice if the made up his mind. This was before he met review petition is disposed of in Chambers. Petitioner Balbir Singh. Under the circumst­ The disquiet of a jail trial will be compounded ances it cannot be held and it has not been held by disposal of this petition in chamber without

• hearing Counsel in open Court. Fairness re­ 1. That I am the son of the Petitioner quires that the matter be referred to a large herein and am pairokar in this case and am well Bench as was done for Abdul Rehman conversant with the facts of the case and as Antulay. such am competent to swear this affidavit. PRAYER 2. That I have read and understood the 0 The Petitioner, therefore, prays: contents of accompanying Review Petition and (a) That the Review Petition be set down say that the same are true and correct. Nothing for hearing in open Court: is false and nothing has been concealed there­ (b) that counsel be permitted to address from. this Hon'ble Court; Sworn and verified at New Delhi, this the (c) that the judgment delivered on the 3rd 29th day of August, 1988. of August, 1988, in Criminal Appeal No. 180 DEPONENT. of 1987 be reviewed and set aside; (d) that the conviction and sentence be set P.W. 65 on S.A. DEPOSITION OF BIMAL aside and acquittal or a retrial ordered; KHALSA (e) And any other order or orders be Mrs. Bimla Khalsa r/o village Maloya, Union made to meet the ends of justice; Territory, Chandigarh. AND FOR THE ACT OF KINDNESS THE I was married to Shri Beant Singh, de­ PETITIONER AS IN DUTY BOUND ceased SI on 23-1-1976. Shri Gurdip Singh SI of SHALL EVER PRAY. Delhi Police had got the marriage effect. He DRAWN BY: was my uncle, and he was treating Shri Beant Mr. Mahesh Jethmalani, Singh deceased as his brother. I know Kehar Bar-at-Law, Singh, accd, present in the court, (correctly Bombay. identified the accused Kehar Singh). He is my SETTLED BY: phoophar in relationship but not real Mr. Ram Jethmalani, phoophar. He used to visit my house 6, Ash oka Senior Advocate, Police Lines, New Delhi. I also used to visit his Supreme Court of India, house. I used to go to his house mostly with my New Delhi. husband Beant Singh. Blue-star operation took FILED BY: place on 3rd June, 1984. The position re­ (R. S. SODHI) mained the same after the Blue-star operation, ADVOCATE FOR THE PETITIONER with regard to visiting each others house. We NEW DELHI. used to visit each other sometimes after a FILED ON: 29th August, 1988. month, sometimes after two months, and IN THE SUPREME COURT OF INDIA * sometimes after two weeks. Beant Singh had CRIMINAL APELLATE JURISDICTION taken Amrit in his childhood but he did not REVIEW PETITION (CRIMINAL) NO. — maintain the vow (Rehat na rahi) and he again —OF 1988 took Amrit on 14-10-1984 of his own accord. I IN do not know Satwant Singh. I also took Amrit CRIMINAL APPEAL NO. 180 OF 1987 on 17-10-84 at Sis Ganj Gurudwara, Delhi. KEHAR SINGH Kehar Singh had accompanied me for the PETITIONER purpose alongwith his wife. On 17-10-84 one VERSUS boy had come to our house and none-else. I STATE (DELHI ADMINISTRATION) had gone to Amritsar alongwith Kehar Singh RESPONDENT. and his wife, and Shri Beant Singh on 20-10- AFFIDAVIT 1984. 4 I, Rajinder Singh son of S. Kehar Singh, We had gone there by Shane-E-Punjab, resident of Gurdwara Moti Bagh, Nanakpura, and had stayed at Amritsar with an acquaint­ New Delhi, aged about 43 years, do hereby ance of Kehar Singh. His name was M. R. solemnly affirm and state as under: - Singh. Reaching there in the afternoon at 13 about 2-3 P.M., we went to Darbar Sahib enquired as to what would happen to the Gurudwara, at about 5-6 P.M. We returned children. Thereupon he said God would look from Amritsar on the next day. One book after them. I thought he was not serioug. I whose name I do not remember and one cannot say if on the xxxxxxxx 14th Oct. 84 cassette was purchased by Shri Beant Singh Beant Singh had taken Amrit at the instance of from Amritsar. Kehar Singh in Sector VI Gurudwara R. K. (At this stage the Ld. SPP has sought Puram but on 13th Oct. he was telling me that permission to put questions in the nature of 'he was going to take Amrit. cross-examination to this witness on the plea I did not tell the police that Beant Singh that she has resiled from her statement u/s 161 had taken Amrit at the instance of Kehar Singh Cr.P.C. The request is granted). on 14-10-84 in Gurudwara Sector 6, R. K. xxxn by SPP. Puram. (Confronted with portion E to E of My statement was recorded by R. P. PW65/A where it is so recorded). I know that Kochar on 16-1-85. It was not read over tome. no gold articles can be worn at the time of It is incorrect that it was read over to me and I taking Amrit. had accepted it as correct, (confronted with Q. Did Sardar Beant Singh hand over his portion A to A of statement Ex. PW65 A golden kara and golden ring to Kehar Singh wherein words RO&AC have been recorded). xxxxxxxxx before taking Amrit on 14-10-84? • It is incorrect that Kehar Singh had started (Question objected to on the ground that the visiting our house more frequently after Blue- witness was not present at the time and, as star operation. (Confronted with portion B to such, question cannot be put. Objection over- B of PW65/A wherein it is so recorded). It is ruled in view of the fact that the witness is incorrect that I had told in my statement that being put questions in the nature of cross- Kehar Singh used to come even twice in a week examination by the SPP). or 4/5 times and used to talk about the I Ans. I do not know. destruction of Golden Temple on 2/3 occa­ ASJ sions. (Confronted with portion C to C of 4-10-1985 PW65/A wherein it is so recorded). I did not I It is incorrect that I had told the police tell the police that once my husband had gone that Kehar was given golden kara and ring by with Kehar Singh to Gurudwara Moti Bagh Beant Singh before taking Amrit on 14-10-84 where many inciting speeches were given. (confronted with portion F to F PW65/A (Confronted with portion D to D of PW65/A wherein it is so recorded). I did tell to the wherein it is so recorded). I know one Ujagar police that on xxxxxxxxx 17-10-84 in the Singh Sandhu. We had gone to* attend a evening Kehar Singh had come to our house function of grandson of said Ujagar Singh and had gone to the roof of the house with Sandhu in September, 1984. It is correct that Beant Singh and they were closeted together we were invited to that function by Kehar there for 18-15 minutes. (Volunteered further Singh rather than by Ujagar Singh Sandhu. It is that this was nothing unusual). correct that there inciting and joshila bhashan The fact of Kehar Singh coming and being were given in the context of destruction of closeted with Beant Singh on the roof for 18-15 Akal Takht in Golden Temple and the Blue- minutes on 17-10-84 in our house is correct. star Operation and atrocities on Sikhs. It was Q. On the same evening Satwant Singh also said in the said lecture that the Govt, was constable had also come to your house? taking all sikhs as extremists, and it was further Ans. One boy had come. I do not know if said there that yet another extremist was born he was Satwant Singh. in the house of said Ujagar Singh Sandhu. A Q. On two occasions prior thereto also video film was prepared of the said function. Satwant Singh had come to your house? Beant Singh had told me that after learning Ans. It is correct that the same boy, I do about what happened in Amritsar, he was not know if he was Satwant Singh, had come to feeling hurt and wanted to become shaheed. I our house on two earlier occasions in the first 14 week of October, 1984. gaya >> Q. I suggest that on that on that evening Kehar Ans. Yes. Singh and Satwant Singh took their meals at .Q. At Amritsar on 20.10.84 you, Jagir Kaur your house? (Mrs Kehar Singh) and children were listening Ans. It is correct but I cannot say if he was to kirtan while your husband and Kehar Singh Satwant Singh (the later part the witness has I went to see the Akal Takht? stated on enquiry and clarification from the Ans. Yes. court at the instance of Shri P. P. Grover, Advocate). Q. You also expressed a desire to see Akal Takht but you were told to see the same in the Q. While you were cooking meals in the morning? kitchen, Satwant Singh, Beant Singh and Ans. Yes. Kehar Singh were talking to each other on low Q. On the next day i.e. 21.10.84 Kehar Singh tones? and Beant Singh went to Darbar Sahib while Ans. How I could know when I was in the you and others remained in the house? kitchen. Ans. Yes. Q. You, children and Jagir Kaur left the house I did not tell the police that all the three of at about 8 A.M.? them were talking in low tones when I was Ans. Yes, with Shri M. R. Singh, cooking meals'in the kitchen. (Confronted with Q. When you reached Darbar Saheb, Beant portion G to G of PW65/A where in it is so Singh and Kehar Singh had already taken their recorded). bath? Q. After taking meals Satwant Singh went Ans. Yes. away? Q. When you paid your salutations before Shri Ans. Yes. (at the instance of Shri Grover it was Harmander Saheb and then'saw Akal Takht? clarified that reference to Satwant Singh was to Ans. Yes. the same boy who had come to their house the Q. You and children, Jagir Kaur kept sitting same evening). near Nishan Sahib while Beant Singh and Ke­ har Singh went somewhere? It is correct that Beant Singh then went to Ans. Yes. Gurudwara. It is correct that then I enquired Q. Thereaftei you, Jagir Kaur, Kehar Singh from Kehar Singh as to what they were talking and children went to the house of Shri M. R. thereupon. Singh while Beant Singh remained behind? Kehar Singh replied that the talks were Ans. Yes. with regard to making somebody take Amrit. Q. A photo of Bhinderwale was also purchased Q. Thereupon you enquired from Kehar Singh from there? that taking Amrit was not such a thing as to be Ans. It might have been purchased as it was talked so secretly? lying in the house, but it was not purchased in Ans. Yes. Mr Grover). Q. Then Kehar Singh became silent? Q. When Beant Singh was left alone in Darbar Ans. He said there was nothing particular. Saheb he had told you that you may leave while he has to meet somebody? Q. You had told the police in your statement Ans. Yes. # PW65/A that "I enquired of Kehar Singh that Q; \n Darbar Saheb Aap Beant Singh ke saath chat par kaya batte to your husband Beant Singh that you had on kar rahe the to unohon ne batya ke kisi ko 17.10.84 enquired from Kehar Singh as to what amrit chakhana ke liye puch raha tha. Mere they were talking, on the roof? yeh kehne par ke yeh to aisi baat nahin thi jo Ans. Not in my presence, but my husband had mere samne na ho sake. Kehar Singh chup kar asked from me that I had asked from kehar Singh as to what they had been talking on the signatures? roof on 17.10.84. Ans. Yes. Q. These Sigs. were xxx affixed by you at the Q. On 21st Oct. 84 you alongwith Kehar Singh, time of identification of golden kara and ring of children and Jagir Kaur went to-railway station* your husband before a Magistrate? direct from the house of M. R. Singh while Ans. Yes. Beant Singh reached there from Darbar Q. I suggest you that the boy referred to by you Saheb? to have visited your house is Satwant Singh. Ans. Yes. Accused present in the court? Q. On 24.10.84 Beant Singh insisted that you Ans. At that time he did not have a beard. should take Amrit again in Sector VI, Gurud­ (At this stage witness has further stated wara, R. K. Puram, New Delhi but you that he is fat—while that was thin at that time). refused? Ans. Yes. Q. I again suggest that he is the sameman? * ^M^M • ~ 'Ans. He may be or may not be. Q. Your husband returned from night duty and. Q. A book of Sant Bhindrewala was recovered shortly after you saw Satwant Singh constable I with your husband going out on a scooter on from your house after the occurence of this 24th Oct. 84? case. Ans. It is correct but I do not know if he was ans. Yes. Satwant Singh or somebody else. It was, Q. That book was purchased by Shri Beant however, Diwali day—and the boy was the Singh from Gurudwara Bangla Saheb? same who had earlier come to our house. Ans. Yes. Q. Two copies of spokesman of 8th October 84 Q. On 31.10.84 you also went to duty and so and 15.10.84 were also brought from Bangla did your husband at 7.30 A.M. Saheb Gurudwara by your husband? Ans. Yes. But my husband had left for duty at Ans. I do not know. quarter to seven. Q. You had in your statement Ex. PW65/B in portion A to A stated before the police that Q. You learnt at 12.10 hrs. (P.M.) that the "doo keppian spokesman dated 8.10.84 wa Prime Minister had been shot at? 15.10.84 bhi mera pati Bangla Saheb se laya Ans. Yes. tha". Q. When you learnt that your husband had Ans. I do not know the names but he had died? brought one magazine and kirpans (confronted Ans. On evening of 1st of November, 1984. ^^^^ • with portion A to A which it so recorded in PW Q. Your statement was again recorded by Shri 65/3. R. P. Kochar on 19.1.1985? . Q. Do you know Sarabjit Singh, IPS? Ans. Yes. Ans. Yes. Q. You had again told the police that a photo Q. His mother Smt. Gurdev Kaur often used to of Bhinderwale and Puran Singh's tape was come to Lady Harding Hospital for treatment? purchased on 21.10.84 in Darbar Saheb at Ans. Yes. Amritsar? Q. As and when she felt the necessity, she used Ans. Photo was not purchased in my presence to come to you? but tape was and photo was recovered from my Ans. Yes. (Question objected to on account of house. relevancy. Objection is overruled in view of [ Q. You had identified the golden kara and a the statement u/s 161 Cr.P.C. now Ex PW ring before the Magistrate as belonging to Shri 65/B). Beant Singh? Q. You are working in Lady Harding Hospital Ans. Yes. as Nursing sister? Ans. Yes. Q. Mark 'X' at Ex. PWll/G-2 bears your Q. Sarabjit Singh and Beant Singh had taken 16 the IPS test together? xxxn by Shri P. P. Grover, Adv. for accused Ans. Yes. Balbir Singh and Kehar Singh. Q. On the death of mother of Shri Sarabjit I have contested elections in Punjab repre­ Singh Beant Singh had gone at the cremation? senting myself to be widow of a Saheed and Ans. Yes. I also had gone. , people had given me great respects and the • (To be deferred. government has created problem for me by RO & AC setting up Shri Chet Ram Simbol on behalf of 4.10.86 ASJ Lok Dal again said as independent for par­ liamentary constituency and as a consequence P.W. 65 on S.A. thereof more than 8000 votes went to the other Smt. Bimla Khalsa (contd.). side—due to confusion of Symbol. I am going xxxn by SSP to continue. to file an election petition, which I will, file I can identify the handwriting and written after my statement as I am not getting time. material of Shri Beant Singh. Ex. P. 39 is in the Q. The determination of your husband to handwriting of Shri Beant Singh on both sides assassinate Prime Minister Indira Gandhi was thereof. I have seen Ex. P. 38 and the writings his and on his own initiative, even you had in the said diary mark Ex. P. 38/1 to 13 in the tried to persuade him not to do it, he would not handwriting of Shri Beant Singh. I have seen have agreed to your persuation? application Ex. PW65/C. This application is Ans. It is correct that determination was his bearing my signatures. This was submitted for and of his own accord but he never disclosed addition of names of children in the passport about it to me at any time. I do not know if on and had authorised on Shri Rajinder Singh son my knowing the same and on my persuading of Shri Kehar Singh accused to collect the him not to do so, he would have agreed to my * passport from the authorities concerned. Kara suggestion. Ex. P. 27 and ring Ex. P. 28 have been seen by me. They are the same which I identified in the Q. You are'proud of your husband? court of Magistrate and which belongs to Shri Ans. I am proud of him and of what he has Beant Singh. (t\ 27 and P. 28 were taken out of done. a sealed parcel). Q. If I suggest to you that you had got it done Q. Does the wife of Shri Rajinder Singh from your husband. Would you be in a position abovementioned and Shamsher Singh my to deny? brother-in-law i.e. brother of my deceased Ans. Yes. I deny it. husband belonged to the same village and the same biradari? After destruction of Akal Takht and Ans. The wives of Shri Rajinder Singh and Shri Bluestar operation when Beant .Singh told me Shamsher Singh belong to the same village and that he will become Saheed I did not enquire the same biradari. from him in which manner. I did not enquire from him whom he was holding responsible for Q. Did you give any interview to the magazine demolition of Akal Takht and Bluestar opera­ Sant Sephai? tion and he and all Sikhs used to hold govt, Ans. Many newspapers and magazine have responsible for it and Mrs. Indira Gandhi did taken my interview. I cannot say about Sant not alone constitute the government. I did not Sephai. take his saying to become Saheed seriously. Q. I suggest it to you that the statement you My husband used to joke also and he once told had made to the police copies Ex. PW65/A and me about his become Saheed. He never joked B were correctly made by you but because of prior thereto. the pressure of accused persons and the posi­ Q. Even though you had taken what Beant tion taken up by you during your elections, you Singh had told you not seriously still why did have resiled from parts thereof? you enquire from him as to what would happen Ans. It is incorrect, and I am telling the truth. to the children? 17 Ans. As a lady I was concerned about them ments by him. I cannot say if he was Tanwar. I therefore I asked him about it. was started to be examined w.e.f. 1.11.84. I cannot say by whom I was examined. I can Q. You did not understand the seriousness of identify that man—but not all of them. There the statement even when he had replied that were many on the 1.11.84. I was much per­ Wahe Guru would look after them or you turbed on 1.11.84 as my husband had died. I would look after them? loved my husband. I was informed of the death Ans. I did not take him seriously even then. of my husband on the evening of 1.11.84.1 told them I wanted to see him. They informed that I had told the police that I did not take him he has already been cremated. I had suspicion seriously in my statement. (Confronted with that my husband was injured. The police had Ex. PW65/A and B wherein it is not so told me that he had fired at the late Prime recorded). My husband was of humerous Minister Mrs. Indira Gandhi. I did not tell the temperament but he never cut such a joke police that on learning that my husband had earlier. fired at Mrs. Indira Gandhi I was so angry that I did not care to find out how he was whether Q. You did not sleep that night thinking as to alive or dead. I was rather finding out where he what he had said? was. I had not stated portion H to H to the . Ans. No. I had slept. police in my statement Ex. PW65/A. Q. May I take that portion H to H in PW65/A Q. You are very inquisitive wife? was written by Mr. Kochar of his own accord? Ans. No. Ans. I cannot say. Q. Why did you ask from Kehar Singh as to why he was talking with Beant Singh if you I do not know if Kehar Singh accused anc i were not inquisitive? his wife were also brought in Yamuna Valod­ Ans. I did considered it something secret and, rome on 2.11.84 but I had not seen them there. therefore, I enquired about it. I similarly did not see and meet either my father or brothers of my husband in Yamuna It is incorrect that I had told the police Valodrome but I had learnt that they were also that I had enquired from Kehar Singh what taken by the police when I had returned to my talk he had had with Beant Singh. On 31.10.84 house. I learnt further when I returned to my police had come to my duty place and brought house that Kehar Singh and his wife had also me to my house and thereafter on the morning been taken by police to Yamuna Valodrome. between 31.10.84 and 1.11.84 at about 4 A.M. We were not allowed to meet any body. I do police took me. It was not Kochar but some not know any affimichi Amarjit Singh ASI or other police officeis. When I was brought to SI, or that he was also taken to Yamuna my house I was left at my house but a guard Valodrome. I used to be let off and then I used was posted outside my house. My mother-in- to come to my house and then I was again law was in the house and the next morning I taken by police and again let off and it had left the children in her charge and went continued for about two months but the guard with the police, Police had asked me to remained at my residence all these two accompany them. I was taken to Yamuna months. ^1 was always left at my house where Valodrome. There I was interrogated by men the guard was posted. I was never detained for police officers but lady police officers were also the night. I could not communicate with present at that time. Kochar did not interro­ anybody during these two months and I was gate me. Anant Ram also did not. I do not not permitted to do so. know about him. thereafter Kochar had re­ It is correct that it was high handedness corded my statement on two dates in the with me to have ben dealt with in that fashion. month Jan. 85. Shri Kochar had not interro- After. 2/3 months I started receiving letters gated me prior to the recording of the state- asking me to vacate the house. I did not protest' * * 18 about his behaviour of the police to any body. May be it was recorded in Vigyan Bhawan. My children also were not permitted to attend A wireless meassage was sent to Chandi­ the school, but I had written letters to P.S. garh police from here and Chandigarh police Chankyapijri. I did not posses copies thereof. had brought me in a bus. The police had paid (The Ld. Counsel for the accused wants for my fare. I had come on these two hearings the said letters sent by the witness to P.S. in bus and the bus was late yesterday and due Chankyapuri. The Ld. SPP is directed to get to rain it was stopped on the way. the same produced if there are any). Q. Sarabjit Singh of IPS was referred to in your ASJ statemeht during cross-examination by the Quite many times, my applications were SPP. It was with the intention of that your not received by them. I was not dismissed from husband had done this act in collusion with service, rather I had resigned myself. My house him? was got vacated. I had resigned my job one two Ans. I do not know. months before the elections held in last month in Punjab as I wanted to contest the elections. I had requested the passport to be deli­ The police had also taken certain articles from vered to Rajinder Singh because his office was my house without giving any receipt to me. near the passport office and it would be easy Kara and ring were also taken which are P. 27 for him to do the job on 24-10-841 had gone to and P. 28, from my home. Two ladies wrist my mother's house to attend Diwali. I came watches were also taken by the police. I did not back the next day. Because my name was personally go to Police station to lodge my Bimla Devi, therefore, my husband changed it protest but I was told on my representation after marriage to Bimla Khalsa. My husband that they could not take risk of sending my was a staunch sikh. children to school. I left Delhi, of my sweet- Q. He was prepared to sacrifice his life for will, because my in-laws were staying in Chan­ Panth? digarh . Ans. He has in fact given his life for panth. Kehar Singh accd.had left us at Gurud- wara Sis Ganj outside and went away. I did not Beant Singh used to talk about Amritsar know if he had any work in Chandni Chowk or happening but I did not find him angry. He that he had come with us on account of that used to say that small children had become work. My husband used to take liquor. He saheed in Amritsar and they were like our used to take liquor in the company of Rajinder children but he did not say that what was going Singh above-referred. On 13th when I had to happen to our children. I was married to my enquired from my husband as to why he was husband for 8 years. He was not hard-hearted.. taking Amrit then he told me that he wanted to It is not compulsory that Amrit is taken at the give up taking liquor. He was a man of his time of marriage amongst the Sikhs. It is not words and he used to follow whatever he would compulsory that when the bride is a Hindu girl say, and he did not take liquor thereafter. He then amrit is adminstered at the time of her had given up egg and meat also. marriage to a Sikh according to Sikh rites. We had gone to Amritsar to see M. R. Normally, every sikh takes amrit at one stage. Singh in connection with the marriage of my Marriage of son of Kehar Singh was due to be sister. It was nothing any unsusual in our going held in November, 84, but I do not know if he to Akal Takht and Harminder Sahib and was contemplating to take his son for Amrit — taking bath in the sarover as which ever Sikh taking ceremony. My husband was arranging goes to Amritsar does it whether before transport for the marriage party of the son of Blue-star operation or after therof. Guard had Kehar Singh and Kehar Singh used to talk been removed in Dec. 84 and it might be on about it with him and Kehar Singh had been 16.12.1984. I was summoned to Delhi by Mi coming to Beant Singh to talk about marriage Kochar. My statement was recorded at some arrangement — and they used to sometimes sit other place other than interrogation centre. in the drawing room and sometimes on the roof

* 19 and' I had never joined in their talks nor long as I was in Delhi as the police had stopped participated and they never told me about it. us. On the 1st Nov. 84 at about 4 A.M. I was The name of wife of Kehar Singh is not Amrik taken in a jeep to Yamuna Valodrome and was Kaur but it is Jagir Kaur. I do not know any taken to a room where there were number of Amrik Kaur. Jagir Kaur and Beant Singh police officers and my interrogation started. belong to the same village and it is was the only No light was put over my head, and the relation between Beant Singh, Jagir Kaur and interrogation continued till evening. Whatever Kehar Singh. The joshila bhashans which took I had been saying was recorded. This con­ place in the house of Ujagar Singh were held tinued for quite sometime. My signatures were even in Gurudwaras in those days and sikhs not obtained although police officers used to used to speak against the Government. All sign those interrogation papers. (At this stage, sikhs whom I have met during my elections Ld. counsel for the accd. has requested that he were against Blue-star-operation but they have should be supplied copies of those statements, never taken the name of the persons who were and Ld. SPP is directed to find out if there are responsible for Blue-star. I had requested any such statements). through an application filed before Shri S. L. ASJ Khanna. ACM Delhi, that case against Terseem Singh Jamwal and Ram Sarup be also filed. I saw one boy with a pagree on his head I took it back when Shri Kochar told me sitting on the scooter on 24-10-84. The scooter that they would themselves file the case. So far was of my husband. It is incorrect to suggest the case has not been filed and on enquiry I that I am making my statement under pressure was told that he would do it. I had enquired or that I am under fear because of any past even today in the jail when I came there. Shri treatment. It is further incorrect to suggest that Kochar is a Govt, servant and I believe that he my statement is correct in part and false in would do what he says because the case is with part. him. My husband used to write the names of I did not listen to Radio on 31-10-84 at those persons in Ex. P. 38 whom he knew. noon as I had not composed when I found my At this stage Ld. SPP has submitted that house in a dishevelled condition as the same the I.O. Shri Kochar has informed him cate­ \ had been searched before I reached my home. gorically that no other statement except PW65/ I enquired from the guard at my house but A and B were recorded of this witness, apart even he could not tell me anything as to why from on 4-2-85 copy supplied already, rtiy house had been searched and where my xxxn by Shri Lekhi—deferred as requested by husband was. Even my mother-in-law was not Shri Grover. allowed to go out. We had he could not tell me (to be contd). anything as to why my house had been sear­ RO&AC ched and where a Radio in our house. The ASJ electricity was not disconnected. Despite a 10-10-1985 radio in my home, I did not use it to find out • : W. 65 on S.A. what had happened. I did not see the newspap­ Smt. Bimla Khalsa (to continue). er on 1-11-84 in my house, although we used to ^ n by Shri P. N. Lekhi. Advocate. have a newspaper prior thereto. I did not try to When I was taken to Yamuna Valodrome find out on returning home in the evening as to in the. morning, sometimes it used to be dark where was the newspaper. I did not listen to and sometimes day was already broken. I was radio either. I was again taken on 2-11-84 brought back from there when it was dark. morning and brought back on 2nd evening and There was no fixed time. Invariably it was again there was no paper in the house and I did between 10 or 11 P.M. when I was brought not listen the radio. I have not used the radio back. My first statement was recorded on since then. I did not read the newspaper as 1-11-1984, before the police. The statement 20 used to continue throughout the day. I "cannot with Beant Singh or anybody else and did not give the time which the police took in record­ meet anybody else and did not take meals at ing my statement on 16-1-1985 but it not for the your house and did not have any talk with you whole day. The same is Ex. PW 65/A. They on that day. In fact, he never visited your recorded whatever I had told them and not that house. What you say? I did not know that they recorded what they Ans. I have already answered all these ques­ had recorded and I had not told. tion in my earlier cross-examination. Q. The man who is sitting on the extreme right RO&AC (the Ld. Counsel has referred to Satwant Singh ASJ accd.) had never come to your house in the * month of Oct. 84? Ans. One boy used to come but Satwant is not Translation of Ext. PW II/C, a statement that boy. dated 1-12-84 made by Satwant Singh, recorded by Sh Bharat Bhushan ACMM, New Delhi forthcoming on the record of the case noted Q. Shri Kehar Singh did not come to your, below:— house on 17-10-84? * Case (FIR) No. 241/84 dated 31-10-84 U/S Ans. It is incorrect to say so. He had in fact i 302, 307, 120-B I.P.C. and 25, 27, 54/59, Arms come to my house. Act, relating to P.S. Tughlak Road, New ASJ Delhi. Satwant Singh made the following state­ (At this stage, Shri Rajesh Harmal, Adv. ment:- for accd. Kehar Singh and Balbir Singh wants I and Beant Singh, Sub-Inspector, per­ to put one more question in cross-examination form our respective duties together at P.M. to the witness and seeks permission for that. House. I used to be in uniform while Beant The Ld SSP has objected to such permission Singh used to be on security duty. I had been being granted on the ground that Shri P. P. on duty at P.M. House for 1-3/4 years. Beant Grover has already completed cross examina­ Singh was posted there much before my tion of this witness and so has Shri P. N. Lekhi, posting over there. I was already having some Adv. xxxxxxxxxxxxxxxxx and there is no furth­ friendship with Beant Singh and used to er right of cross-examination and, as xxxx exchange greetings from before but we de­ stated earlier the inverval has been utilized to veloped good friendship from 29-9-84. On suborn the witness further, therefore, question 16-10-84 when both of us were on duty at P.M. be disallowed. I have given my considered House, Beant Singh met me in the bathroom thought to the objection of Ld. SPP. Howev­ and asked me to visit his house also. Thereup­ er, in so far as Shri Lekhi has put a suggestion on, I told him that I will do visit. Beant Singh to the witness which was belied by her it is in used to live in Ashoka Police Lines, I went to the interest of justice to allow the question Beant Singh's house on the 17th. He was then which is sought to be put by counsel for xxxx not present, but after a shortwhile he reached accd. Kehar Singh to the witness in further there. He told me there that he had invited me cross-examination as a perusal of question at his residence for the reasons to finalise some which has been framed shows. Request if plan to do away with the PM. I took* his granted. assertion as a joke. In the meanwhile his wife ASJ came over there and he became silent. At this, 15-10-1985 I sought his leave. Thereupon, he enquired as xxxn by Shri Rajesh harrial for accd. Kehar to when I would be meeting him again. I met Singh. him again at 7 P.M. next day in Gurudwara Q. I put it to you that on the day. i.e. 17th Bangla Sahib. Again said the time was not 7 Oct. 84 when you have stated Kehar Singh P.M. but it was 5 P.M., no talks were held visited your house, he did not have any talk between us. I proceeded on leave on 19th 21 October and returned on 24th. Both of us i.e. I morning of 31st October. My duty hours were and Beant Singh took AMRIT on 24th itself in from 7.00 AM to 10.00 AM while Beant Singh a Gurudwara at R.K. Puaram, New Delhi, the was to perform duty from 7.30 to 1.30 hours. actual words being 24 TRIKH KO HI R.K Both of us were on duty at T.M.C. (Gate). PURAM NEW DELHI EEK GURUD­ Beant Singh told me at about 7.45 A.M. that WARA KA AMRIT MENE WA BEANT shooting of a picture (film) on PM was to take SINGH DONO NE LIYA'. (Beant Singh, place that day and the Prime Minister would S.I., had already had consulted one Balbir pass through this gate 3/4 times. In short, the Singh, S.I. (posted at) PM house. In fact, both task has to be accomplished today itself, the of these persons had advised to kill the Prime actual words being 'BUS AAJ KAAM KAR Minister? Amarjeet Singh, S.I. (posted at) DENA HAI\ At about 9/9.15 A.M. Smt P.M. House, one Delhi Battery Wala and one Indira Gandhi, the Prime Minister, Sh. R. K. Harbans Singh having a shop at Mori Gate, Dhawan, Sh. Fotedar accompanied by two were also involved in the conspiracy to kill the other persons and Sh. Narain Singh who was Prime Minister alongwith Beant Singh. Besides holding an umbrella, emerged from 1, Safdar- them, one relative of Beant Singh who lived in jang Road and were proceeding towards 1, Faridabad, was also involved (in this conspira­ Akbar Road. At that time, the Prime Minister cy). He was about 45 year's age with stout and was 7/8 paces away from us when Beant Singh bulky body and swarthy complexion, he along­ moved two paces forward and immediately with his son, aged about 20 years, had met me fired 4/5 shots at Prime Minister Indira Gan­ earlier at Beant's house. Nobody suspected dhi, from his revolver. I was holding an S.A.F. Beant Singh as he was having close friendship stengun. I having cocked my stengun im­ with Sh. R. K. Dhawan, the Secretary to Prime mediately opened fire on the left side of the Minister. It was on 24th when Beant Singh had Prime Minister. I had loaded twenty bullets in told me, "We would kill the Prime Minister on my stengun and fired all the bullets at the P.M. 25th." He further asked me to get my duty Some shots hit the Prime Minister while some Hours fixed between 7.00 and 10.00 Hours at hit the road. The Prime Minister fell down on i T.M.C. gate. I had already made up my mind the ground immediately after receiving the first that if he made an attempt to kill the Prime bullet shot. My intention was to kill even Beant Minister, I would shoot him with a view to get but I exhausted all the bullets by firing shots at some reward from my department but I got the Prime Minister. Thereafter, I followed somewhat frightened and did not get myself Beant in throwing away the arms which we posted there on 25th. On the contrary I told were holding and we raised our hands. There­ Beant about not having got my posting over upon the security staff secured us and took we there. Thereupon, he took me to his house on people to I.T.B.P Guard Room where we were 27th and informed me that the PMs program­ made to sit on the chairs, and the Guards of me for one week had been received. He further I.T.B.P. took their position while aiming tjjeir added that people would come on 31st to have stenguns at us. Sometime thereafter, I.T.B.P. a glimpse of the Prime Minister. He told me Guards opend fire at me and Beant Singh, 12 that his (plan) for 31st should succeed positive­ bullets hit me and Beant died at that very ly as his earlier programme had cancelled. He place. I also became unconscious and thereaf­ further told me that P.M. was to be killed on ter I was got admitted to the hospital. 13th August itself but they did not succeed on that day. He repeatedly asked me to get myself R.O. & A.C. Sd/- Bharat Bhushan, posted by all means in the morning of 31st Sd/- Satwant Singh ACMM itself. He further asked me to take special care (In English) (In English) that no bullet hits Sh. R. K. Dhawan. He went Addl. Chief Metropoli­ on to say that he would first open fire at the tan Magistrate, P.M. We both managed to put ourselves on New Delhi. duty at T.M.C. Gate, P.M. House in the 1-12-fr 6.00 P.M. 22 Seal of the p.c. in case he makes a statement a copy may Addl. Chief be supplied to me to enable completion of Metropolitan investigation. Magistrate, Sd/- Rajinder Prakash New Delhi. (In English)

Ext. PW II/C-I ORDER: Certified that the aforesaid confessional I will record the statement with a copy statement of the accused Satwant Singh in P.M. India Gandhi Assassination case has (Carbon). The carbon copy will be given to the been recorded by me after explaining to the I.O. accused that he was not bound to make the Sd/- Illegible confession and that if he does so, it may be Addl. Chief Metropoli­ used as an evidence against him. During the tan Magistrate, ' entire proceedings there does not appear to be New Delhi. any pressure upon the accused and there 1-12-84. neither any police officer nor anybody else within the hearing or sight. The proceedings IN THE SUPREME COURT OF INDIA have taken about one hour and forty five Criminal Appellate Jurisdiction minutes. The accused has signed on each and Criminal Appeal Nos. 180 to 182 of 1987 every page of his statement. The entire state­ In the matter of ment has been read over to him. The accused Kehar Singh and Ors. has been identified by the Supdt. Jail, Sh. A. V. The State (Delhi Admn.) B. Shukla. JUDGMENT Seal of the Sd/Bharat Bhushan, Addl. Chief ACMM OZA,J.: Metropolitan (In English) Magistrate, 1-12-84 6.15 P.M. 1. These appeals by leave are directed against Mew Delhi Addl. Chief Metropoli­ the conviction of the three appeLants Kehay tan Magistrate, Singh, Balbir Singh and Satwant Singh under New Delhi. Section 302 read with Section 120-B IPC and the appellant Satwant Singh under Section 302 read Copy of an application bearing no date, with Sec. 120-B, Sec. 34 & Sec. 307 IPC and also marked as Ext. PWII/D, moved by Sh. Rajin- under Sec. 27 ofthe Arms Act. All thethreewere der Prakash, ACP, in the court of Sh. Bharat sentenced to death under Section 30?. read with Bhushan, A.C.M.M., Delhi together with Ex. Sec. 120-B. The conviction and sentence of these P.W.D.-II/I a copy of an order dated 1-12-84, appellants were confirmed by the High Court of made by A.C.M.M., New Delhi, forthcoming Delhi by its judgment in Criminal Appeal Nos. •thereunder:- 28-29/1986 and Confirmation Case No. 2/86. n \he Court of Sh. Bharat Bhushan, The case relates to a very unfortunate incident ACCMM., New Delhi. where the Prime Minister Smt. Indira Gandhi was (FIR No. 241 dated 31- assassinated by persons posted for her security at 10-84 U/S 302/307/120-B her residence, IPC and 25/27/54 . A, Act, P.S.T. Road). 2. The facts brought out during investigation are that Smt. Indira Gandhi had her residence in Sir, New Delhi at No. 1, SafdarjungRoad. Her Office In the above case accused Satwant Singh ^fc ^V _^M AkbaA 4 4 r ^I^^^K. -a. A S/O Trilok Singh, R/O V. Agwan, Distt. two Gurdaspur, is to make a statement U/S 164 Cr. had been rolled into one by a campus with a 23 cemented pathway about 8 ft. wide leading from for publication to the Delhi Gazette. Sometime the residence to the Office and separated by a later on 22Jid December, 1984 the Administration Sentry gate which has been referred to as the in exercisi of powers under Section 8(1) of the TMC Gate and a sentry booth nearby. Smt. Police Act appointed Des Raj Kakkar and M.S. Indira Gandhi had gone on a tour to Orissa and Sharma as Deputy Commissioner of Police and returned to New Delhi on the night of 30th Octo­ Assistant Commissioner of Police respectively ber, 1984. At about 9 A.M. on the.fateful day i.e. designating them as Officers superior to an 31st October, 1984 Smt. Gandhi left her residence Officer-in-charge of a Police Station and placed and proceeded towards the office along the ce- their services at the disposal of Shri Anandram. mented path. When she approached the TMC We understand that Shri R.P. Kapoor was named Gate and was about 10 or 11 ft. away therefrom as the Chief Investigative Officer but it was Mr. she was riddled with a spray of bullets and she fell Kochhar who was closely associated with the, immediately. She was removed to All India investigation throughout except for a short period Institute of Medical Sciences ('AIIMS' for short) between 15.11.84 when the SIT assumed charge but to no avail. A wireless message about the and 27.11.84 when his services were lent to SIT occurrence was received at 9.23 A.M. by the and he is an important witness of the prosecution Wireless Operator Head Constable Ram Kumar so far as investigation is concerned. PW38 at Tuglak Road Police Station having 4. Shri Kochhar reached AIIMS at about 10 A.M. jurisdiction over the place of occurrence. The and at 11.25 A.M. on 31.10.84 he sent at the Duty Officer PW 1 deputed Sub Inspector Vir Tuglak Road Police Station through Shri Vir Singh PW 20 and Constable Mulak Raj to visit the Singh, PW 20 a report on the basis of which First spot at once. They were soon joined by the Station Information Report (FIR) for a cognizable House Officer Inspector Baldev Singh Gill PW 21. These persons roped off the area of occurrence to offence punishable under Sections 307, 120-B isolate it, placed it in charge of Constable and then IPC and Sections 25,27,54 & 59 of the Arms Act proceeded to AIIMS. was registered at the Police Station. The report was based on the statement of Narain Singh, PW 3. In the meanwhile it was decided to entrust this 9, a Head Constable deputed on duty at Smt. investigation to Rajendra Prasad Kochhar PW 73 Indira Gandhi's residence, recorded by Shri then Inspector in the Homicide squad of the Kochhar at AIIMS. Narain Singh who was accom­ Crime Branch of Delhi Police. However, as is panying Smt. Gandhi at the time of shooting and only to be expected having regard to the circum­ claimed to be a witness of occurrence had stated stances, the Government soon decided to as follows. This statement made by Narain Singh constitute a Special Investigation Team (SIT) to in the First Information Report brings out the pursue the investigation. On 9.11.84 the Delhi important facts leading to the offence and this Administration issued two notifications. By one of partoftheStatementasquotedbythe High Cbiirt these in exercise of powers under Section 7(1) of reads: Delhi Police Act, S. Anandram, IPS was ap- pointed as an Additional Commissioner of Police "When we were about 10-11 ft. away from the and was declared for the purpose of Section 36 Cr. gate of 1, Safdarjung Road and 1, Akbar Road, P.C. to be a Police Officer superior in rank to an I noticed Beam Singh SI on duty at TMC Gate Officer-in-chargeofa Police Station. By the other and in the adjoining Sentry booth Constable •notification issued in exercise of the powers con­ Satwant Singh, 2ndBn. in uniform armed with a Stengun was on duty. When Smt. Indira ferred under Sec.7(2)(b) of the Police Act, ; Anandram _ was authorised to exercise all the Gandh reached near the Sentry booth, Beant powers and perform all the duties of commis- Singh, SI took out his service revolver from his sioner of Police in relation to this case and any right dub and immediately started firing bul­ other offences connected thereto. The notifica­ lets at Smt. Indira Gandhi. At the same time tion shows that copy of each of them is forwarded Constable Satwant Singh also fired shots at Smt. Indira Gandhi with his Stengun. As-a 24 result of firing of bullets at the hands of the Tihar Jail. It appears that thereafter the Delhi aforesaid two persons Smt. Indira Gandhi ministration sustained injuries on her front and fell down on High Court and the Delhi High Court authorised the ground. Sh. Rameshwar Dayal ASI has also Sh. S.L. Khanna by Order dated 1.12.84 to hold received bullet injuries due to the firing made remand proceedings in Tihar Jail on 1.12.84 and by the aforesaid two persons. I threw the onsubsequentdates.lt also appears that ShriG.P. umbrella, Shri Beant Singh SI and Constable Tareja who was the link Ma Satwant Singh were secured with the assis- Khanna had gone on Ion tance of Shri B.K. Bhatt, AGP PSO in ITBP dated 1.12.84, Shri Bhar< it Bhushan Gupta, PW personnel. The arms of these two persons fell 1 was appointed as a link Magistrate in this case, down on the spot itself. Thereafter I went to call In the light of these oreler s Satwant Singh was Dr. R. Obey. In the meantime the car, doctor produced before Shri Kh anna on 1.12.84 in the and the other officials reached the place of Jail. He passed on the papers to Shri Bharat occurrence and Smt. Indira Gandhi was re- Bhushan Gupta and later recorded a confession moved to AIIMS and was got admitted there. Satwant Shri B.K. Bhatt, Shri R.IC Dhawan, Shri Nathu 11-G. Ram, Sh. Lavang Sherpaand Shri Rameshwar n One Kehar Singh said to be an Uncle

DayaJ l ASI had witnessed the occurrence. (\ • i I #.vv ..^ Assistant Beam Singh SI and Constable Satwant Singh in S*Office of the Director General of Supplies in furtherance of their common objects have & Disposals was claimed to have been arrested on fired shots at Smt. Indira Gandhi and have 30.11.84. He was produced before Shri Khanna caused injuries on her person with an inten- on xnu who remanded him to police custody tion to kill her. It is learnt that Beant Singh liU 5 12.g4. He is said to have made a statement SI and Constable Satwant Singh had also 0n 3.12.84 in pursuance of which some incriminat- sustained bullet injuries at the hsnds of ITBP ing anides were seized at his house and from a personnel. Legal action may please be taken place pointed out bv him. He was again produced against them." on Kh re- 5. Upon receiving the news about the death of manded him to judicial custody till 15.12.84 Smt. Indira Gandhi, the offence in the FIR was pending further investigation, converted from Section 307 to Section 302 and • . . . 8. Balbir Singh, a Sub-Inspector posted for investigation proceeded ahead. security duty at Smt Gandhi>s office is said t0 6. According to the prosecution Satwant Singh have been arrested on 3.12.84. It is said that was arrested on 15.11.84 at Red Fort where he certain incriminating material was found on his had been taken after his discharge from the personwhen searched at the time of his arrest. On Hospital in early hours of the same day. The 4.12.84 at the request of Delhi Administration the Chief Justice and the Judges of the Delhi High High Court empowered Shri S.L Khanna Court on a request made by Delhi Administration with the remand matter of these persons accused

• decided to depute and designate Shri S.L. in the assassination case of Prime Minister. * Khanna, Additional Chief Metropolitan .Magis- Balbir Singh was therefore produced before Shri Urate, Tis Hazari to deal with the remand matter S.L. Khanna on 4.12.84 and was remanded to the of Satwant Singh in Red Fort, Delhi. Satwant police custody till 6.12.84. On 6.12.84 an applica- Singh was produced before Shri S.L. Khanna, PW tion was filed before Shri S.L. Khanna which * 67 on the same day and remanded to the police stated that Balbir Singh wanted to make a confes- custody till 29.11.84. On 29.11.84 it was said that sion. The matter was sent by Sh. S.L. Khanna to Satwant Singh wanted to make a confession and Sh. Bharat Bhushan Gupta. After two appear- he was produced before Shri Khanna. Shri ances before Shri Bharat Bhushan, Balbir Singh Khanna, however, gave him time to think over till finally refused to make statement confessional or 1.12.84 and remanded him to judicial custody in otherwise. 25 •

# 9. In the meantime the Police had recorded decision of the Government to take army action certain statements one of Amarjit. Singh PW 44 in Golden Temple complex. The resentment led who was also a Police Officer ASI on duty at the them ultimately to the incident of 31.10.84 and to PM's residence. These statements have been become parties to a criminal conspiracy to com­ recorded on 24.11.84 and 19.12.84. The Police mit an illegal act namely to commit the murder of requested the Magistrate Shri Bharat Bhushan to Smt. Indira Gandhi. In pursuance of the above record a statement of Amarjit under Section 164 conspiracy accused has committed the following Cr. P.C. That was accordingly recorded as PW 44- acts. This report (charge-sheet) stated facts A. against each of the accused persons which have been quoted by the High Court in its judgment: 10. Beant Singh had died as a result of injuries * sustained by him and referred to by Narain Singh "(i) Accused Kehar Singh, a religious fanatic, in his statement in the FIR itself. A report under after the 'Bluestar Operation' converted Section 173 Cr.P.C. hereto referred to as the . Beant Singh and through him Satwant Singh to charge-sheet was filed on 11.12.1985 in the religious bigotry and made them undergo Court of Shri S.L. Khanna against Satwant Singh 'AjnritChhakna ceremony'on 14.10.1984 and who had survived after a period of critical illness 24.10.1984 respectively at Gurudwara Sector from his injuries and the two other persons VI, R.K. Puram, New Delhi. He also took referred to above namely Balbir Singh and Kehar Beant Singh to Golden Temple on 20.10.1984 Singh. These three persons were accused of an where Satwant Singh was to join them as part of offence under Sections 120-B, 109 and 34 read the mission. ^^ • » with 302 IPC and also of substantive offences (ii) Since the 'Bluestar Operation* Balbir under Sections 302, 307 IPC and Sections 27,54 Singh was planning to commit the murder of & 59 of the Arms Act. This report also mentions Smt. Iadira Gandhi and discussed his plans Beant Singh as one of the accused persons but with Beant Singh, who had similar plans to since he had died the charges against him were commit the offence. Balbir Singh also shared said to have abetted. his intention and prompted Satwant Singh to # 11. The prosecution case at the trial was that in commit the murder ofSmt. Indira Gandhi and June 1984 the armed forces of the Indian Union finally discussed this matter with him on 30th took action which is described generally as Op­ October, 1984. eration Bluestar' under which armed forces per­ (iii) In the first week of September, 1984, sonnel entered the Golden Temple complex at when a falcon(baaz) happened to sit on a tree Amritsar and cleared it off the terrorists. In this near the main reception of PfvTs house, at operation it is alleged that there was loss of life about 1.30 P.M. Balbir Singh spotted the and properties as well as damage amongst other falcon,, called Beant Singh there and pointed things to the Akal Takht in the Golden Temple out the falcon. Both of them agreed that it had complex. As a result of this Operation the brought the message of the itaih Guru of the religious feelings of the members of the Sikh Sikhs and that they should do something by community were greatly offended. According to way of revenge of the Bluestar Operation'. the prosecution, all the four accused persons Both of the above accused performed ardas mentioned in the charge-sheet who were sikhs by then and there. faith have been expressing their resentment (iv) In pursuance of the aforesaid conspiracy, openly and holding Smt. Indira Gandhi respon­ Beant Singh and Satwant Singh, who had prior sible for the action taken at Amritsar. They had met at various places and at various times to knowledge that Smt. Indira Gandhi was discuss and to listen inflammatory speeches ana scheduled to pass through the T.M.C. Gate recording calculated to excite listeners and on31.10.1984 at about 9 A.M. for an interview provoke them to retaliatory action against the with an Irish television team, manipulated their duties in such a manner that Beant Singh 26 would be present at the T.M.C. Gate and fired through the weapons possessed by these two Satwant Singh at the T.M.C. Sentry booth on accused persons. The report also mentioned that 31.10.1984 between 7.00 and 10.00 A.M. Beam Remeshwar DayalASI who was following Smt. Singh managed to exchange his duty with SI Jai Indira Gandhi, PW 10 also received grievous and Narain (PW 7) and Satwant Singh arranged dangerous injuries on his left thigh as a result of to get his duty changed from Beat No. 4 at shots fired by the accused which according to the PM's house to T.M.C. Sentry Booth situated medical opinion were grievous and dangerous to near the latrine by misrepresenting that he life. was suffering from dysentery. Beant Singh was 13. It is significant that in this case the Additional armed with a revolver (No. J-296754, Butt No. Sessions Judge who tried the case was nominated 140) which had 18 cartridges of .38 bore and by the High Court for trial of this case and on this Satwant Singh was armed with a SAF Carbine count some arguments were advanced by the (No. WW-13980 with Butt No. 80) and 100 learned counsel for the appellants. I will examine cartridges of .9 mm. Both having managed to the contentions a little later. Learned counsel station themselves together near to T.M.C. appearing for appellants Kehar Singh and Balbir Gate on 31.10.1984, at about 9.10 A.M., Beant Singh first raised some preliminary objections Singh opened fire from his revolver and Sat­ about the procedure at the trial. First contention want Singh from hjs carbine at Smt. Indira raised by him was about the venue of the trial and Gandhi as she was approaching the T.M.C. the manner in which this venue was fixed by the Gate. Beant Singh fired five rounds and Sat­ * want Singh 25 shots at her from their respective Delhi High Court by a notification under Section weapons. Smt. Indira Gandhi sustained inju­ 9(6) Cr.P.C. ries and fell down. She was immediately taken 14. The second objection was aboutthe trial held to the AIIMS where she succumbed to her in jail and it was contended that under Article injuries the same day. The cause of death was 21 of the Constitution of India, open and public certified upon a post-mortem which took place trial is one of the constitutional guarantees of a on 31-10.1984, as haemorrhage and shock due fair and just trial and by holding the trial in the to multiple fire arm bullet injuries which were Tihar Jail this guarantee has been affected and sufficient to cause death in the ordinary course accused have been deprived of a fair and open of nature. The postmortem report No. 1340/ trial as contemplated under Section 327 Cr.P.C. 84 of the AIIMS also opined that injuries Nos. The other objection raised was that under Sec. land 2, specified in the report, were sufficient 327 Cr. P.C it is only the trial Judge, the Sessions to cause death in the ordinary course of Judge who could for any special reasons hold the nature, as well." trial in camera or a part of the trial in camera but there is no authority conferred under that Section 12. In this report (charge-sheet) it was also on the High Court to shift the trial in a place where mentioned that Beant Singh and Satwant Singh it ultimately ceases to be an open trial. Learned laid down their weapons oh the spot which had counsel on this ground referred to series of been recovered. About five empties of Beant decisions from United States, England and also Singh's revolver were recovered and 13 live from our own courts and contended that the open cartridges .38 bore from his persons, 25 empties trial is a part of the fair trial which an accused is of SAF carbine, and 6 led pieces were recovered always entitled to. from the sjDOt. About 75 live cartridges of .99 SAF carbine were recovered from the person of Sat­ 15. The other question raised by the learned want Singh. That two led pieces were recovered counsel for the appellants was that by preventing from the body of Smt. Indira Gandhi during the the accused from getting the papers of the post-mortem and two from her clothes and that Thakkar Commission, its report and statements the experts have opined that the bullets recov­ of persons recorded; who are prosecution wit­ ered from the body and found frnmthe spotwere nesses at the trial the accused have been deprived 27

J of substantial material which could be used for 20. The first objection raised by the learned their defence. counsel is on the basis of Sec. 194' that it was not 16. These main questions were raised by the necessary for the High Court to have allotted the counsel appearing for Kehar Singh and Balbir case to a particular Judge. The learned Judges of * Singh and counsel for Satwant Singh adopted the High Court in their judgment have come to these arguments and in addition raised certain the conclusion that the last part of the Section preliminary objection pertaining to the evidence refers to "The High Court may by special order j of post-mortem, ballistic expert and similar mat­ direct him to try" and on the basis of this phrase ters. the High Court in the impugned judgment, has 17. Learned Additional Solicitor General appear­ observed that it was even open to the accused to j ing for the respondent replied to some of the legal make an application and to get the case trans- J arguments and also the other arguments on facts. ferred or allotted to a Judge. Sec. 194 Cr. P.C. ] One of the preliminary objections sought to be reads: \ raised by the learned Additional solicitor "Additional and Assistant Sessions Judge to try j General was that this Court in an appeal under cases made over to them - An Additional Article 136 of the Constitution of India is not Sessions Judge or Assistant Sessions Judge expected to interfere with the findings of facts shall try such cases as the Sessions Judge of arrived by the two courts below. He also relied on the division may, by general or special order, some decisions of this Court to support his make over to him for trial or as the High Court contention. may, by special order, direct him to try." 18. On the preliminary objection raised by the The first part of the Section clearly provides that Additional Solicitor General that in this appeal the Sessions Judge of the Division by general or under Article 136, we are not expected to go into special order is supposed to allot cases arising in the facts of the case, we will like to observe that a particular area or jurisdiction to be tried by I we are dealing with a case where the elected Additional or Assistant Sessions Judges ap- I i leader of our people, the Prime Minister of Irtdia pointed in the division but the last part of this j i • was assassinated and who was not only an elected Section also au thorises the High Court to allot the leader of the majority but was very popular with' case to a particular Judge keeping in view the fact the people, as observed also by the High Court in that in certain cases the Sessions Judge may not j its judgment but still we have all through main­ like to allot and may report to the High Court or I tained the cardinal principle of our Constitution either of the parties may move an application for I - Equality before law and the concept of rule of law transfer and under these circumstances it may ! in the system of administration of justice. Al­ become necessary for the High Court to allot a though these accused persons indicated at some particular case to a particular Judge. Thus, this j stage that they are not able to engage counsel but objection is of no consequence. The other objec- I still they could get the services of counsel of their tion which has been raised by the learned counsel choice at the State expense, it must be said to the issuance of a notification by the High j credit of the learned counsel Shri Ram Jeth- Court under Sec. 9(6) Cr. P.C. and by this I malaniand Shri R.S. Sodhi that they have done notification the High Court purported to direct an excellent job for the appellants and therefore that the trial in this case shall be held in Tihar Jail. we will like to thank these counsel and also the Learned counsel appearing for the Delhi Additional Solicitor General, who all have ren- Administration on the other hand attempted to dered valuable assistance to this Court. justify such an order passed by the High Court by I A * contending that if the High Court had the author- f 19. In view of the importance of the case, we have ity to issue notification fixing the place of sitting heard the matter at some length both on questions it was open to the High Court also to fix the place 1 of law and also on facts. of sitting for a particular case whereas emphasis 1 28

by learned counsel for the appellants was that cused shall not be necessary." Sec. 9(6) only authorises the High Court to fix the 22. But it is certain that if this proviso is not on place of sitting generally. So far as in any the statute book applicable to Delhi, it can not particular case is concerned, the second part of be used as the High Court has used to interpret sub-clause 6 permits the trial court with the con­ it. That apart, if we look at the notification from sent of parties to sit at any other place than the a different angle the contention advanced by the ordinary place of sitting. learned counsel for the appellants ceases to have 21. The High Court in the impugned judgment any force. Whatever be the terms of the notifica­ have attempted to draw from proviso which has tion, it is not disputed that it is a notification been a local amendment of Uttar Pradesh. issued by the Delhi High Court under Sec.9 sub­ Unfortunately nothing could be drawn from that clause (6) Cr.P.C. and thereunder the High Court proviso as admittedly that is not a State amend­ could do nothing more or less than what it has the ment applicable to Delhi. Section 9(6) Cr. P.C. authority to do. Therefore, the said notification nowhere permits the High Court to fixth e venue of the High Court could be taken to have notified of a trial of particular case at any place other than that Tihar Jail is also one of the places of sitting the place which is notified as the ordinary place of. of the Sessions Court in the Sessions division sitting. It reads thus: ordinarily. That means apart from the two places "Sec. 9(6): The Court of Session shall ordinar­ Tis Hazari and the New Delhi, the High Court by ily hold its sitting at such place or places as the notification also notified Tihar Jail as one of the High Court may, by notification, specify but if, places where ordinarily a Sessions Court could in any particular case, Court of Session is of hold its sittings. In this view of the matter, there opinion that it will tend to the general conven­ is no error if the Sessions trial is held in Tihar Jail ience of the parties and witnesses to hold its after such a notification has been issued by the sittings at any other place in the sessions High Court. division, it may, with the consent of the 23. The next main contention advanced by the prosecution and the accused, sit at that place counsel for the appellants is about the nature of for the disposal of the case or the examination the trial. It was contended that under Article 21 of of any witness or witnesses therein." the Constitution a citizen has a right to an open On the basis of this language one thing is clear that public trial and as by changing the venue the trial so far as the High Court is concerned it has the was shifted to Tihar Jail, it could not be said to be jurisdiction to specify the place or places where an open public trial. Learned counsel also re­ ordinarily a Court of Sessions may sit within the ferred to certain orders passed by the trial court division. So far as any particular case is to be wherein it has been provided that representatives taken at a place other than the normal place of of the Press may be permitted to attend and while sitting it is only permissible under the second part passing those orders the learned trial Judge had of sub-clause with the consent of parties and that indicated that for security and other regulations it decision has to be taken by the trial court itself. will be open to Jail authorities to regulate the It appears that seeing the difficulty the Uttar entry or issue passes necessary for coming to the Pradesh amended the provision further by adding Court and on the basis of these circumstances and a proviso which reads: the situation as it was in Tihar Jail it was

\ contended that the trial was not public and open "Provided that the court of Sessions may hold, • and therefore on this groundthetrialvitiates.lt or the High Court may direct the Court of was also contended that provisions contained in Session to hold, its sitting in any particular case Sec. 327 Cr.P.C. clearly provides that a trial in a at any place in the sessions division, where it criminal case has to be public and open except if appears expedient to do so for considerations any part of the proceedings for some special of internal security or public order, and in such reasons to be recorded by the trial court, could be cases, the consent of the prosecution and ac- in camera. It was contended that the High Court 29 while exercising jurisdiction under Sec.9(6) be or remain in, the room or building used by notified theplace of trial as Tihar Jail, it indirectly the Court. did what the trial court could have done in respect (2) Notwithstanding anything contained in of particular part of the proceedings and the High sub-section (1), the inquiry into and trial of Court has no jurisdiction under Section 327 to rape or an offence under section 376, section order trial to be held in camera or private and in 376A, Section 376B, section 376C or section fact as the trial was shifted to Tihar Jail it ceased 376D of the Indian Penal Code shall be con­ to be open and public trial. Learned counsel on ducted in camera; this part of the contention referred to decisions from American Supreme Court and also from Provided that the presiding judge may, if House of Lords. In fact, the argument advanced he thinks fit, or on an application made by has been on the basis of the American decisions either of the parties, allow any particular per­ where the concept of open trial has developed in son to have access to, or be or remains in, the due course of time whereas so far as India is room or building used by the court. concerned here even before the Constitution our (3) Where any proceedings are held under criminal practice always contemplated a trial sub-section (2) it shall not be lawful for any . * which is open to public. person to print or publish any matter in relation 24. In fact, the High Court in the impugned to any such proceedings, except with the previ- judgment was right when it referred to the ous permission of the court." concept of administration of justice under the old This was Section 352 in the Code of Criminal Hindu Law. But apart from it even the Criminal Procedure which was Act of 1898. It will be Procedure Code as it stood before the amend- interesting to notice the language of Sec. 327. It ment had a provision similar to Sec. 327 which was speaks that any place where a criminal court Sec. 352 of the Old Code and in fact it is because holds its sitting for enquiry or trial shall be of this that the criminal trial is expected to be deemed to be an open court to which the public open and public that in our Constitution generally may have access. So far as the same can r< phraseology difference.from the United States conveniently contain them. The language itself has been there. .Article 21 provides: indicates that even if a trial is held in a private "No person shall be deprived of his life or house or is held inside Jail or anywhere no sooner personal liberty except according to proce­ it becomes avenue of trial of a criminal case it dure established by law." isdeemed tobe in law an open place and everyone who wants to go and attend the trial has a right It is not disputed that so far as this aspect of open to go and attend the trial except the only trial is concerned the procedure established by restriction contemplated is number of persons law even before our Constitution was enacted was which could be contained in the premises where as is provided in Sec. 327 Cr.P.C (Sec. 352 of the lhe Coun sks R appears that thc wilole argu. old Code): ment advanced on behalf of the appellants is on a Court to be open-(l) The place in which any the basis of an assumption inspite of the Criminal Court is held for the purpose of provisions of Sec. 327 that as the trial was shifted inquiring into or trying any offence shall be from the ordinary place where the Sessions Court deemed to be an open Court, to which the are sitting to Tihar Jail it automatically became a public generally may have access, so far as the trial which was not open to public but in our same can conveniently contain them: opinion in view of Section 327 this assumption, the Provided that the Presiding Judge or basis of the argument itself is without any founda- Magistrate may, if he thinks fit, order at any

V 29. The Commission was also asked to make and integrity of India, the security of the State recommendations as to corrective remedies and friendly relations with foreign states or in measures that need to be taken for future. public interest, it is not expedient to lay before the House of People, or as the case may be, the 30. It is therefore clear that out of these terms of Legislative Assembly of the State, the report reference the first term (a) and the last one (e) or any part thereof, of the Commission. On the are such that the evidence collected by the enquiry made by the Commission under sub­ Commission could be said to be relevant for the set^ 1) and issue a notification to that effect in purposes of this trial. the official gazette. 31. It is significant that the Commission framed (6) Every notification issued under sub­ regulations under Section 8 of the Act in regard section (5) shall be laid before the House of the to the procedure for enquiry and regulation 8 People, as the case may be, the Legislative framed therein reads: * Assembly of the State, if it is sitting as soon I as may be after the issue of the notification, • and if it is not sitting, within s^ven days of its "In view of the sensitive nature of enquiry the resuming and the appropriate Govt, shall seek proceedings will be in camera unless the the approval of the House of People, or as the Commission directs otherwise." case may be, the Legislative Assembly of the State to the notification by a resolution moved This Regulation made it clear that the proceed­ within a period of 15 days beginning with the ings of the Commission will be ordinarily in day on which the notification is so laid before camera. It would only be in public if the Commis­ the House of People or as the case may be sion so directs and it is not disputed that so far as the Legislative Assembly of the State makes recording of evidence is concerned and the any modification in the notification or directs / proceedings of the Commission it has gone on in that the notification should cease to have camera throughout and even the report, interim effect. The notification shall thereafter have and the final report. And then also it was stated by effect as the case may be." the Commission itself to be confidential. In this In pursuance of this amendment on May 15,1986 perspective the prayer of the appellants has to be the Central Government issued a notification considered. under sub-section (5) of Section 3 stating "The 32. Under the Act as it stood before the Central Government, being satisfied that it is not amendment which was done by Ordinance No.6 expedient in the interest of the security of the of 1986 normally the Government was supposed State and in public interest to lay before the House to place the report of the Commission under of People, the report submitted to the Govern­ Section 3 sub-clause 4 of the Act before the ment on 19.11.85, and 27.2.86, by Justice M.P. House of the People within six months of the Thakkar, a sitting Judge of the Supreme Court of submission of the report by the Commission but India appointed under the notification of the the Government did not do that. The steps were Government of India, in the Ministry of Home taken to amend the Commission of Enquiry Act Affairs No. SO 867(B), dated the 20th November, and on May 14, 1986 the President of India 1984 thereby notifies that the said report shall not promulgated an Ordinance No. 6 of 1986 be laid before the House of People." It is namely Commission of Enquiry (Amendment) interesting that on 20.8.86, Ordinance No. 6 was Ordinance, 1986 by which sub-sections 5 and 6 replaced by Commission of Enquiry (Amend­ were introduced to Section 3 as follows: ment) Act, 1986 (Act No. 36 of 1986) with retrospective effect. The said notification dated "Sub-clause 5: The provisions of sub-section May 15,1986 was also got approved by the House 4 shall not apply if the appropriate Govt, is of People as required under sub-section 6 of satisfied then in the interest of the sovereignty Section 3 and therefore after the approval of

s 33 the notification by the House of the People there should be adopted to eradicate the evil found remains no question of placing the report of the or to implement the beneficial objects it has in Commission before the House. view. From this point of view, there can be no objection even to the Commission of Enquiry 33. So far as the steps taken ,by the appellants are recommending the imposition of some form of concerned, it is no doubt true that an appropriate punishment which will, in its opinion, be application in the manner in which it was moved in the High Court was not moved in the trial court sufficiently deterrent to delinquent in future. but it could not be doubted that one of the But seeing that the Commission of Enquiry has accused persons had even sought these copies in no judicial powers and its report will purely be the trial court and the same prayer has been recommendatory and not effective propro appropriately made during the hearing in the vigro." High Court. The proper time for awarding the The statement made by" any person before the prayer was in the trial court during the pendency Commissionof Enquiry under Sec. 6 of the Act of the trial as the accused wanted the copies of the is wholly inadmissible in evidence in any further previous statements of some of the prosecution proceedings civil or crimi^rl. witnesses which were recorded during the enquiry before the Thakkar Commission but such 35. According to learned counsel, in that case it a prayer was made and rejected. was not the scope ofSection 6 but the validity of the provisions were in question and the 34. The High Court rejected this prayer by the observations were only incidental and it can not impugned judgment against which the present be regarded as a binding precedent. The High appeal is before us. The High Court relied on the Court has accepted these observations of this decision of this Court in the case of Ram Krishan Court in the judgment quoted above and in our Dalmiav Justice Tendulkar 1959 SCR 279, which opinion rightly. But apart from it, we shall try to is referred to henceforth as Dalmia's case. It was examine Sec.6 itself and other provisions relevant contended by learned counsel for the appellants for the purpose as to whether the appellants i.e. that this case could not be accepted as an author­ the accused before the trial court were entitfed ity on interpretation of Sec. 6 as in that case the to use the copies of the statement of those prose­ scope of Sec. 6 was not before the Court but it was cution witnesses who were examined before the the validity of the provisions which were chal­ Thakkar Commission for purposes of cross ex­ lenged. Das, C J. in Dalmia's case while examin­ amination or to use the report of the Commission ing the challenge to the validity of the Act and the or whether it could be handed over or given over notification issued thereunder made the follow- * to the accused for whatever purpose they intended ing observations: to use. The learned counsel for the parties on this aspect of the matter have referred to number of "The whole purpose of settingup of a Commis­ * sion of Enquiry consisting of experts will be decisions of various High Courts and also some of frustrated and the elaborate process of enquiry the decisions of the English courts. They are being will be deprived of its utility if the opinion and dealt with in the judgment elsewhere as in my the advice of the expert body as to the opinion it is not necessary to go into all of them measures and situation disclosed calls for can except examining the provisions of the Act itself. not be placed before the Government for Sec.6 of the Commission of Enquiries Act consideration notwithstanding that doing so reads:- can not be to the prejudice of anybody because "No statement made by any person in the it has no force of its own. In our view, the course of giving evidence before the Commis­ recommendations of a Commission of Enquiry sion shall subject him to, or be used against are of great importance to the Government in him in any civil or criminal proceedings except order to enable it to make up its mind as to a prosecution for giving false evidence of such what legislative or administrative measures statement." 34 36. On analysis of the provision, it will be found "155. Impeaching credit of witness - The that there are restrictions on the use of a credit of a witness may be impeached in the statement made by a witness before the Commission. First is "Shall subject him consent of the Court, by the party who calls to, any civil or criminal proceedings him- except a prosecution for giving faise evidence by (i) fy such statement." The second restriction, accdrd- that they, from their knowiedgeof the witness, ing to me, is spelt out from the. words "or be used believe to be unworthy of credit; against him in any civil or criminal proceedings." (2) by proof that the witness has been bribed, Thus if we examine the two restrictions stated above it appears that a statement given in a or has (accepted) the offer of a bribe, or has Commission can not be used to subject the received any other corrupt inducement to give witness to any civil or criminal proceedings nor his evidence;

i»t* Ca^r**»n* b%***e useV*W^dW agains*»fc.M*a«*»Vt {liUUlmi iAftn A MAanIy J civiNrlTJAl oWlr V-criminaA 11U1UUAl \(3 ^ )/ * b**y J proof^ * ^ V f•- oV fa. forme•.x-r..-- — r- statement~„*-._ s inconsis- proceedings and in niy opinion it is in the context tent with any part of this evidence which is of these restrictions that we will have to examine liable to be contradicted; the provisions of the Evidence Act which permit (4) When a man is prosecuted for rape or an the use of a previous statement of a witness and attempt to ravish, it may be shown that the for what purpose. Sec. 145 read with Sec. 155(3) prosecutrix was of generally immoral charac­ and Sec. 157 are the relevant provisions of the ter. yy Evidence Act. Sec. 145 reads: a 38. This section provides that the credit of a Cross-examination as to previous statements ^^ may be impeached in the following ways in writing - Awitness may be cross examined . an adverse with the consent of the Court

r\ *a s to previous.st^n^nts made by him in h he wnQ calls him and the third sub. wnting or reduced into writing and relevant to clause refers to a former statement which is matters in question, without such writing being inconsistent with the statement made by the wit- shown to him, or being proved; but if it is ness in evidence in the case and it is permissible intended to contradict him by the writing, his that the wimess be contradicted about that attention must before the wnting can be statement j^ third provision is Sec. 157 which proved, be called to those parts of it which are ides fof the use of ^ iQi}S statement for to be used for the purpose of contradicting corroboration> It reads: him. >» "157. Former statements ot witness may be This provision permits that a witness may be cross- proved to corroborate later testimony as to examined as to the previous statement made by same fact. In order to corroborate the testi­ him in writing or reduced to writing relevant to the i mony of a witness, any former statement matters in question without such writing being made by such witness relating to the same fact, shown to him or being proved. But if it is intended at or about the time when the fact took place, to contradict him by the writing his attention must or before any authority legally competent to be drawn to those parts of the writing; and it can investigate the fact, may be proved." be proved. A witness could be cross examined on his previous statement but if a contradiction is A perusal of these three Sections clearly indicate sought to be proved then that portion of the tliat there are tw0 purposes for which a previous previous statement must be shown to him and statement can be used. One is for cross examina- proved in due course. . tion and contradiction and the other is for The first purpose is to discredit 37. Sec. 155 of the Evidence Act provides for the t« witness by7 putting to him the earliea in 1r use of a previous statement to impeach the credit ct„, " "7" i" T*"*J" ?• ^-""" ,""V * . * o~

; A or impair it or; fourthly some vital piece of easy to get direct evidence. It appears that evidence which would tilt the balance in favour considering this experience about the proof of of the convict has been overlooked, disre­ conspiracy that Sec. 10 of the Indian Evidence Act garded or wrongly discarded." was enacted. Sec. 10 reads: These are the principles laid down by this court "Things said or done by conspirator in refer­ and keeping these in view I will attempt to ence to common design Where there is examine the High Court judgment. I may how­ reasonable ground to believe that two or ever, mention that where the High Court has more persons have conspired together to reached conclusions based on partly inadmis­ commit an offence or an actionable wrong, sible evidence and partly on circumstances which anything said, done or written by any one of are not justified on the basis of evidence, or partly such persons in reference to their common on facts which are not borne out from the evi- intention, after the time when such intention dence on record it can not be contended that in an was first entertained by any one of them, is appeal under Art. 136 this Court will not go into a relevant fact as against each of the person the facts of the case and come to its own conclu- believed to be so conspiring, as well for the sions. The case on hand is one of such cases and purpose of proving the existence of the some of the findings of fact reached by the High conspiracy as for the purpose of showing that Court could not be said to be such which are any such person was a party to it." concurrent or conclusive. We were therefore put to the necessity of examining the evidence wher- This Section mainly could be divided into two: the ever it was necessary. first part talks of where there is reasonable ground to believe that two or more persons have 44. The other ground urged on behalf of the conspired to commit an offence or an actionable appellants relates to the relevancy of evidence wrong, and it is only when this condition 37

. precedent is satisfied that the subsequent part of a reasonable ground exists, anything said, done the Section comes into operation and it is material or written by one of the conspirators in refer­ to note that this part of the Section talks of ence to the common intention, after the said reasonable grounds to believe that two or more intention was entertained, is relevant against persons have conspired together and this evi­ the others, not only for the purpose of proving dently has reference to Sec. 120-A where it is the existence of the conspiracy but also for provided "When two or more persons agree to do, proving that the other person was a party to or cause to be done." This further has been it. The evidentiary value of the said acts is safeguarded by providing a proviso that no agree­ limited by two circumstances, namely, that the ment except an agreement to commit an offence acts shall be in reference to their common shall amount to criminal conspiracy. It will be intention and in respect of a period after such therefore necessary that a prima facie case of intention was entertained by any one of them. conspiracy was to be established for application The expression 'in reference to their common of Sec. 10. The^second part of Section talks of intention' is very comprehensive and it anything said, done or written by any one of such appears to have been designedly used to give it persons in reference to the common intention a wider scope than the words 'in furtherance of after the time when such intention was first enter­ in the English law; with the result, anything tained by any one of them is relevant fact against said, done or written by a co-conspirator, after each of the persons believed to be so conspiring the conspiracy was formed, will be evidence as well for the purpose for proving the existence of against the other before he entered the field the conspiracy as for the purpose of showing that of conspiracy or after he left it. Another impor­ any such person was a party to it. It is clear that tant limitation implicit in the language is indi­ this second part permits the use of evidence which cated by the expressed scope of its relevancy. otherwise could not be used against the accused Anything so said, done or written is a relevant person. It is well settled that act or action of one fact only 'as against each of the persons of the accused could not be used as evidence believed to be so conspiring as well for the against the other. But an exception has been purpose of proving the existence of the con- carved out in Sec. 10 in cases of conspiracy. The spiracy as for the purpose of showing that any second part operates only when the first part of such person was a party to it.' It can be used the Section is clearly established i.e. there must only for the purpose of proving the existence be reasonable ground to believe that two or more of the conspiracy or that the other person was persons have conspired together in the light of the a party to it. It cannot be used in favour of the , language of Sec. 120-A.Itisonlythentheevidence other party or for the purpose of showing that of action or statements made by one of the such a person was not a party to the conspiracy. accused could be used as evidence against the In short, the Section can be analysed as other. InSardarSardulSingh Caveesharw State of follows: (1) There shall be a prima facie Maharashtra 1964 (2) SCR 378, Subba Rao, J. (as evidence affording a reasonable ground for a he then was) analysed the provision of Sec. 10. and Court to believe that two ormore persons are made the following observations: members of a conspiracy; (2) if the said con­ dition is fulfilled, anything said, done or writ­ "This section, as the opening words indicate ten by any one of them in reference to their will come into play only when the Court is common intention will be evidence against the satisfied that there is reasonable ground to other; (3) anything said, done or written by believe that two or more persons have him should have been said, done or written by conspired together to commit an offence or him after the intention was formed by any one an actionable wrong, that is to say, there of them; (4) it would also be relevant for the Should be a prima facie evidence that a person said purpose against another who entered the wasa party to the conspiracy before his acts can conspiracywhether it wassaid, doneorwriilen Einjui be used against his co-conspirators. Once such 38

before he entered the conspiracy or after he murder. He also shared his intention and left it; (5) it can only be used against a co­ prompted accused Satwant Singh to commit the conspirator and not in his favour." murder of Smt. Gandhi and finally discussed the matter with him on Oct. 30,1984. In the firstwee k In the light of these observations and the analysis of September, 1984 a falcon (baaz) happened to of Sec. 10 we will have to examine the evidence led sit on the tree near the Reception gate of the by prosecution in respect of conspiracy. Prime Minister's house in the afternoon at about 45. We first take the case of Balbir Singh. Balbir 1.30 P.M. Balbir Singh spotted the falcon and Singh was an Officer of the Delhi Police in the called Beant Singh there. Both of them agreed cadre of Sub Inspector. He was posted on duty that it has brought a message of the Tenth Guru at the PNf s residence on security. On 31.10.84 in of Sikhs that they should do something by way of the morning he was not on duty but his duty was revenge of the 'Bluestar Operation'. Thereafter to commence in the evening and on that day at they offered 'Ardas'. Akbar Road gate it appears that when he reported for duty in the normal course he was asked to go 47. These allegations, the prosecution has at­ to the Security Police Lines and at about 3 A.M. tempted to prove by the evidence of the following on November 1, 1984 he was awakened from his witnesses: sleep and his house was searched by SI Mahipal i) SI Madan Lai Sharma, PW 13 Singh, PW50, Constable Hari Chand, PW17 and ii) Constable Satish Chandra Singh, PW 52 Inspector Shamsheer Singh. Nothing except a printed took on Sant Bhindrawale Ex. PW 17A iii)Sub Inspector Amarjit Singh, PW 44 and was recovered. It is alleged that about 4 A.M. he iv) Confession of Satwant Singh, PW 11C. was taken to Yamuna Velodrome. He was kept The prosecution also strongly relied upon the there till late in the evening when he is reported to have been released. This custody in Yamuna document Ex. Pw 26B which was recovered from Velodrome is described by Sh. Kochhar, P W 75 as the possession of the accused when he was ar­ 'de facto custody*. But there is no evidence or no rested at Najafgarh Bus-stand. His leave applica­ tions which are Ex. PW26 El to E5 along with his police officer examined to say that he allowed this * accused to go in the evening on November 1,1984. post crime conduct of absconding are also relied Thereafter he is alleged to have been arrested upon. on December 3, 1984 at Najafgarh Bus-stand. 48. According to the accused, the document Ex. Wheji his personal search was taken and certain PW 26B was not recovered from his possession articles were recovered from his possession in­ as alleged by the prosecution. He also contests his cluding a piece of paper which is Ex. PW 26B. On arrest at Najafgarh Bus-stand and says that it is December 4,1984 he was produced before the just a make-believe arrangement. According to Magistrate who remanded him to police custody. him, he was all along under police custody right- Thereafter it is alleged that he expressed his from the day when he was taken to Yamuna desire to make a confession but when produced Velodrome on November 1,1984. In fact he was before the Magistrate he refused to make any hot allowed to go out and the question of his statement. abscondence does not arise. He was also not put any question on abscondence under Sec. 313 46. The allegations in the charge-sheet against examination. this accused if summarised are: that Balbir Sfngh like the other accused persons has expressed his 49. Now, we will take first, the arrest of this resentment openly holding Smt. Indira Gandhi accused on 1st November. It is not disputed that responsible for the 'Bluestar Operation'. He was on 1st November late at night his house was planning to commit the murder of Smt. Gandhi searched and a printed took - Sant Bhindrawale and he discussed these matters with Beant Singh was seized from his house and he was brought to deceased who had similar plan to commit the Yamuna Velodrome. It is also not in dispute that _ • •d 39 s the prosecution evidence itself indicates thatupto the only evidence that this person was arrested at the evening the next day he'was seen in the midnight in the late hours on 1st November and Yamuna Velodrome. was carried to Yamuna Velodrome and was seen "50. It will be better here to describe what this thereby some prosecution witness till the evening Yamuna Velodrome is? From the prosecution of the next day. evidence what has emerged is that this is a place 52. Then the other aspect of the matter which is where there are number of offices but Police has of some importance is about the prosecution reserved a portion of this building to be used for allegation that he was absconding from 1st or 2nd interrogation and investigation. Normally when a November till 3rd Dec. 1984. It is significant that person or a witness is brought for interrogation or no witness has been examined to indicate that he investigation at a Police station, some record has went to findhi m out either at his residence or at to be made as there is a general diary although any other place in search of him and that he was diaries may or may not be filled in but a duty is cast not available. There is also no evidence produced on the Station House Officer of a Police Station to indicated that inspite of the fact that during to maintain the movements of the Police Officers investigation police wanted to arrest him again and also to note down the activities especially but he was not available at his known address. when it is connected with the investigation of an It is perhaps of absence of evidence as to abscond­ important case. But it appears that all about the ing the trial court when examined this accused preliminary investigation of this case was going on under Sec. 313 did not put him any question about at Yamuna Velodrome, witnesses and persons his abscondence. It is therefore clear that the were brought here, detained or kept, and interro­ abscondence as a circumstance could not be used gated. We do not have any further evidence in against him. regard to this place. 53. Let us now examine the story of the prosecu­ 51. According to the prosecution, this accused tion that this accused was arrested at Najafgarh was at Yamuna Velodrome upto the evening of Bus-stand. It is alleged that sh. Kochhar, the that day and thereafter he was allowed to go and Investigating Officer got some information that then he absconded. As a matter of fact this part this accused was expected to appear at that place of the story becomes very important in view of the on 3rd December, 1984. It was not immediately * further facts alleged by the prosecution that the after the assassination. It was after a month. The investigating officer got some information people could come forward to become witness. through some one that this accused who was But no independent witness has been examined in wanted would appear at the time and place support of the arrest or seizure from the accused. indicated. But there is no evidence as to who It may be as technically argued by the learned asked this accused to go. He was a suspect in the Additional Solicitor General that the presence of criminal conspiracy. He could not have gone away public witnesses under the scheme, of Code of P of his own accord. Some responsible officer must Criminal Procedure is required when there is have taken the decision but it is unfortunate that search and seizure from the house or property of no officer has been examined to state that " I the accused but not when a person is arrested and thought that his presence was not necessary and something is recovered from the personal search. therefore I allowed him to go." Learned Addi­ But it is well-known that in all matters where the tional Solicitor General appearing for the State police wants that the story should be believed before us also was asked if he could lay his hands they always get an independent witness of the at any part of the evidence of any one of the locality so that that evidence may lend support witnesses who could say that before him this to what is alleged by the police officers. person was allowed to go from the Yamuna Admittedly for this arrest at Najafgarh and for the Velodrome. There is no evidence on this aspect seizure of the articles from the person of thfi, of the matter at all and therefore we are left with accused there is no other evidence except the * 40 evidence of police officers. Independent witness matter is concerned. We are talking of 3rd in this case would be all the more necessary December which was more than a month after the especially in view of what has been found above unrest in Delhi. It is very difficult to believe that as his release after the earlier arrest is not estab- a citizen in this capital did not come forward to be i lished, and his abscondence is not proved. In a witness for seizure memo. The arrest of the such a controversial situation the presence of an accused in the circumstances appears to be only independent witness from the public, if not of the a show and not an arrest in actuality. * locality, would have lent some support to the case 54. Learned Additional Solicitor General ap­ of the prosecution. It may also be noted that pearing for the State frankly conceded that if the according to Mr. Kochhar, that the accused release of this accused after his arrest on 1st appeared at the Bus-stand but they have not been November is not established and his abscondence able to disclose from where he appeared. is not proved, then the story of his arrest on 3rd Whether he got down from a bus, if so from which December with the recovery of the articles loses bus - city or outstation bus? How he appeared all its significance. It is indeed so. there is all mystery. Nobody bothered to notice of 55. In the context of what has been discussed his coming. It is said that he had a DTC bus ticket. above it is apparent that the arrest of the accused Nobody examined it. Perhaps there was nothing on 3rd December and the recovery of these ar­ to examine. If the Police Officers had gone with ticles from his person have not been proved prior information to arrest the absconding satisfactorily and therefore could not be of any accused who was involved in such an important consequence against this accused. crime, they could have taken an independent witness with them. It is again interesting to note 56. The prosecution attempted to prove the < that instead of searching him and performing the recovery of Ex. PW 26/B on the basis of an entry formalities of arrest at the place where the in the Malkhana Register of Tuglak Road Police accused appeared, he was taken to a place said Station. Entry 986 in the Malkhana Register to be the office of the Electricity Board. The which is made on December 3,1984 according to search and seizure took place there. Some articles the learned Additional Solicitor General, con­ were recovered from his possession. Most of the tains a verbatim copy of the seizure memo Ex. P W articles recovered are mere personal belongings. 35 A and it indicates the fact of recovery of P W-26/ There was also a piece of paper since marked as B and therefore proves that it was recovered from Ex. PW 26/B. The Police did not think it the appellant upon his arrest and search on that necessary to have an independent witness even day. Here again there is an interesting situation. for the seizure memo, when particularly some There is an endorsement in the Malkhana important piece of evidence was recovered from Register stating that the DTC ticket which the his possession. The reply of the learned Addi­ accused carried and the paper containing the tional Solicitor General was that in law it was not dates in English Ex. PW 26/B were not deposited. * necessary. The Investigating Officer when The Malkhana Register therefore is of no help questioned in cross-examination answered that to the prosecution. If they were taken back for any nobody was available or none was prepared to be further investigation they could have made an a witness in this matter. It is unthinkable at a entry to that effect in the general diary. The nature public place and that too at the Bus-stand. ofentryinthe Malkhana Register only shows the Learned Additional Solicitor General also at­ recovery of certain articles and a note that the tempted to contend that the circumstances in two documents although are said to be recovered Delhi after the assassination of the Prime Minis­ but'they were not brought and deposited at the ter were such that no witness was prepared to Tuglak Road Police Station. It is therefore clear come forward. It appears that for every problem that although in the seizure memo the mention of this situation is brought as a defence but in our the two documents including Ex. PW 26/B is opinion, this would not help them so far as this there, they in fact did not reach the Police Station or see the light cf the day. the most probable. As indicated from other 57. In view of these infirmities we can not accept evidence, the accused was preparing to give a that the accused was arrested on 3rd December statement or a confession and therefore he was as alleged by the prosecution. So the recovery of given the notes and he must have recorded those Ex. PW26/B is doubtful. However, we may refer dates to facilitate the statement that he was to the said document as it has been said to be one planning or he was made to give which ultimately of the most important pieces of evidence as the he chose not to give at all. High Court has described it. 61. Looking to this document the only material 58. The document can be taken to have been which could be said to be of some significance is - the words 'felt like killing'. But there is no refer- writtenin the handwriting ofBalbir Singh as that * is not seriously contested before us. The docu­ ence after those words as to who was intended to ment is a sheet of paper in which we find certain be killed. There is also no indication as to whose entries. The document is reproduced at Pages feelings are noted in this piece of paper. There Nos. 57-58 of the judgment prepared by my are entries in this document which refer to meet- learned brother Shetty, J. ings, visits, persons, visiting somebody's house but it isnotclearastowhonHhey refer and what 59. If this document is considered to be a is intended when these reference is made. Beant memorandum of events prepared by this accused Singh has been referred to in this document more relating to his conspiracy, why should he carry than in one place. At one place, there is a refer­ it in an atmosphere surcharged with emotion ence to Beant Singh with eagle. But there is no against the Sikhs. Not only that, this person knew reference to a joint Ardas or this accused or that he was an accused in such an important case Beant Singh telling that it had brought a message where whole public opinion is against him. He or they should take revenge. The entry does not also knew that he was absconding and he also suggest that the accused has anything to do with knew that he was carrying in his pocket such an the eagle. If there is anything, it is against Beant important piece of evidence. Was it his intention Singh. that he should keep it readily available so that he could oblige the prosecution whenever they 62. A perusal of this whole document also shows needed? There is no other possible reason why that there is no reference at all to Beant Singh and this person should keep this document with him his plan to kill the Prime Minister. Nowhere it is all the time. On our questioning the learned mentioned about the bomb or grenade with which Additional Solicitor General about this strange he was planning to eliminate the Prime Minister behaviour of the accused, he also could not before 15th August, 1984. There is also no refer­ explain as to why the accused could have thought ence about Beant Singh conspiring with this of carrying such a piece of paper in his pocket. accused or vice-versa. Kehar Singh is not at all in the document. Satwant Singh, however, is men­ 60. Apart from it, if the document is looked at as tioned against 30th October,. But it does not give it is we see nothing in it except a mention of few an indication where? The prosecution has con­ dates and few events. It even does not indicate nected it with the evidence of PW 52 who was that with those events whether this accused was the Sentry in the Prime Minister security. We will connected in any manner. It is also significant that consider the evidence of this witness a little later. this document was not with this accused when his house was searched and he was arrested on the 63. Under these circumstances it is very clear that night of 1st November, 1984. If the accused after except the mention of 'Bluestar Operation' and that arrest was not released at all and there was 'felt like killing' there is nothing in this document no occasion for him to go away then, one fails to which is of any significance. If the document is understand as to how this document came in his read as it is, we see nothing incriminating against possession? The explanation suggested by the this accused. Unfortunately it appears that the learned counsel for the accused appears to be High Court read in this document what was sug- • 42 gested by the prosecution without considering known to have talked to Satwant Singh on 30th whether it could be accepted or not in the absence October, 1984." of evidence on record. Admittedly, there is no Unfortunately, the learned Judges of the High such evidence at all in this case. Court when they came to the conclusion that 64. Satish Chandra Singh, PW52, who has been Balbir Singh knew Beant Singh and Satwant Singh produced to prove the meeting of Balbir Singh well, have not referred to any piece of evidence with Satwant Singh was for the first time examined in this case which establishes that they knew each during the investigation on 7.2.85 that is after the other well. The learned Additional Solicitor trial had commenced. He has stated that when he General appearing for the State also has not been was on duty on October 30, 1984 Satwant Singh able to point out any piece of evidence on the came and talked to Balbir Singh. But he frankly basis of which this could be inferred. This admitted that he could not follow what they accused being a Sikh also is referred to but there talked as he did not know Punjabi. What value we were number of Sikh officers posted at the house could attach to the testimony of this witness. It is of the Prime Minister and merely because he was impossible to believe him. a Sikh it could not be said that he became a party to the conspiracy or he was in conspiracy or he 65. In view of what we have noticed, even if the document is accepted to have been written by the knew Beant Singh and Satwant Singh well. accused, still there is nothing in it on the basis of Similarly as regards the observations made by the which an inference of conspiracy could be drawn. High Court that balbir Singh shared indignation There must be evidence to indicate that the of Beant Singh against Smt. Gandhi and was in a accused was in agreement with the other accused mood to avenge for the 'Bluestar Operation', persons to do the act which was the ultimate there is no evidence to support it. From the object which was achieved on 31.10.1984. This testimony of SI Madan Lai Sharma, PW 30 all document therefore although described by the that we could gather is that after the 'Bluestar learned Judges of the High Court as very impor­ Operation' Balbir Singh was in an agitated mood tant piece of evidence is nothing but a scrap of and he used to say that the responsibility of paper. damaging the Akal Takht lies with Smt. Gandhi * and it would be avenged by them. From this it 66. Excluding from consideration this recovery cannot be inferred that Balbir Singh wanted to of a piece of paper Ex. PW26/B, what remains take revenge against the Prime .Minister along- has been alaysed by the High Court in the judg­ with Beant Singh. This is not what is said by the ment in the following words: witness. If expression of anger or protest on the "Summing up then the evidence against Balbir 'Bluestar Operation could be used as a piece of Singh leaving out of account for the time evidence or a circumstance against accused then being the confession of Satwant Singh and the all that members of the Sikh community who felt evidence of Amarjit Singh the position is as agitated over the 'Bluestar Operation must be follows: held as members of the conspiracy. He was ah Officer on security duty at the 67. So far as talcing leave is concerned there is PM's house. He knew Beant Singh and Satwant nothing on the basis of which any significance Singh as well. He shared the indignation of could be attached to it. There is no material to Beant Singh against Smt. Gandhi for 'Opera­ indicate that during the leave Balbir Singh met tion Bluestar', and was in a mood to avenge the Beant Singh or anyone else or was in any manner same. He went on leave on 25.6.84 to 26.7.84. connected with the conspiracy or was doing On his return he met Beant Singh and Amarjit something in pursuance of the agreement of / Singh. He was present on the occasion of the conspiracy between them. Merely because on appearance of eagle and their association on certain dates he was on leave no inference could

• that date is borne out by Ex. PW 26/B. He is be drawn. The High Court relied on the fact that ft 43 * after returning from leave this accused met "In the first week of August 19841 had a talk Beam Singh and Amarjit Singh but on this meet­ with Beam Singh. Then he told me that he ing also there is no other .evidence except the would ncSt let Mrs. Indira Gandhi unfurled the evidence of Amarjit Singh PW 44 which we will flag on 15th August. Shri Balbir Singh also used deal with a little later. to tell rhe that if he could get a remote control 68. So far as appearance of falcon and offering of bomb and his children are sent outside India ardas is concerned it is admitted that appearance then he also could finish Mrs. Indira Gandhi. of falcon is considered, by the Sikh community, as I used to think that he was angry and I used to • tell him that he should not think in these terms. a sacred thing as falcon is supposed to be a In the third week of October, 1984, Balbir representative of the Guru and if therefore this _ * Singh told me that Beant Singh apd his family accused and Beam Singh offered ardas nothing have been to the Golden Temple alongwith could be inferred from this alone. As even the Kehar Singh her Phoopha. He further told that High Court observed that: Beant Singh and Constable Satwant Singh had "Nothing unusual or abnormal about the inci­ taken amrit in Sector 6, R.K.Puram, New dent as any religious Sikh seeing the appear­ Delhi at the instance of Kehar Singh." ance of the falcon could offer the Ardas." In his first statement PW 44 DA which has been So far as meeting with Satwant Singh is concerned exhibited during his cross examination admit­ on October 30,1984 the only evidence of that fact tedly there is no reference to Balbir Singh at all.' is the evidence of Satish Chandra Singh PW 52 No reference to Balbir Singh telling the witness about whom I have discussed little earlier and that if he could get a remote control bomb and nothing more need be stated here. his children are sent outside India, he could also 69. With this we are now left with the evidence finish Mrs. Indira Gandhi. There he has stated: of Amarjit Singh who is an important witness as "In the end of September, 1984 SI Balbir per the prosecution. It has come on record that Singh met me once in the Prime Minister's his statement during investigation was recorded house and told me that Beant Singh wanted to thrice; twice by Police under Section 161 and kill the Prime Minister before 15th August, then under Sec. 164 Cr. PC. The first statement _ he (Beant Siqgh) agreed to kill her with a is Ex. PW44 which was recorded on November 24, grenade and remote control but this task was 1984 after 25 days of the incident and the second to be put off because the same could not be statement PW 44 DB was recorded on December arranged. Actual words being in do cheeson ka 19, 1984. On December 21, 1984 the third intezam nahin ho saka isliye baat tal gayi.' statement PW 44A under Sec. 164 of the Code Similarly in his earlier statement Ex. PW 44 DA came to be recorded. In the firststatemen t there is no involvement of Balbir Singh. The second what this witness said was: statement according to the witness was recorded "In the third week of October, 1984 Beant at his own instance. He states that it did not occur Singh SI met me and told me that he had to him that assassination was the handwork of procured one Constable. Actual words being Balbir Singh and Kebar Singh. After he had learnt 'October ke tisare hafte main Beant Singh about the firing and death of Smt. Indira Gandhi mujhe mila usne bataya ki usne ek sipahi he recalled certain things and went to Shri R.P. pataya haf and that now both of them would Sharma who recorded his statement on 24.11.84. put an end to Smt. Indira Gandhi's life very According to him, he recalled bit by bit and that soon.*' was the reason, he gave the subsequent two These portions of the statement which were put statements. If we carefully peruse these state­ and proved from Amarjit Singh as his first ments it is clear that the entire approach of the statement recorded by the police clearly go to High Court appears to be erroneous. Amarjit show that he had only alleged these things Singh PW 44 states before the Court as follows: 44 against Beant Singh. What he did later was to 72. In view of this, it is clear that there is no improve upon his statement and introduce Balbir evidence at all to establish prima facie Singh also or substitute Balbir Singh in place of participation of this accused in conspiracy or any Beant Singh. The only other inference is that he evidence to indicate that he had entered into any was himself a party to that conspiracy. Otherwise agreement to do an unlawful act or to commit an there is no explanation why he should keep on offence alongwith the other accused persons. giving statement after statement, that too after 25 Therefore, in absence of any evidence in respect days of the incident. The second statement was of the first part of Sec. 10 which is necessary it recorded on December 19 and a third statement could not be contended that the confession of on December 21, 1984. It clearly shows that he Satwant Singh could be of any avail or could be was a convenient witness available to State what­ used against this appellant. ever was desired from him. He appears to have 73. Before parting with this witness, one more become wiser day by day and remembered bit by thing may be noted. The High Court, in order to bit, is certainly interesting to remember. explain that this witness Amarjit Singh did not 70. It could not be doubted that the two versions refer to Balbir Singh in his first statement on given out by this witness are not such which could 24.11.84 stated something out of imagination. easily be reconciled. In fact in his first version The High Court has quoted his statement on there is nothing against Balbir Singh. In his second 24.11.84 in these words: # statement he has tried to introduce things against "He is also reported to have said that Beant him. This apparently is a clear improvement. It is Singh had wanted to kill Smt. Gandhi before well-settled that even delay is said to be dangerous 15th of August and that he had agreed to do so and if a person who is an important witness does if grenade and remote control were available." not open his mouth for a long time his evidence is always looked with suspicion but here we have In this context, the use of the word 'agreed' and a witness who even after 25 days gave his first word 'he' the High Court felt that they refer to statement and said nothing against the present Balbir Singh and none else. This appears to be an accused and then even waited for one more month explanation given by Amarjit Singh in his state­ and then he suddenly chose to come out with the ment in Court ,and the High Court felt that it allegations against this accused. In our opinion, could accept it. It is clear that where he says therefore, such a witness could not be relied upon 'agreed' and 'he' in his statement on November 24, and even the High Court felt that it would not be 1984 he had not named Balbir at all. It is only now safe to rely on the testimony of such a witness in his statement at trial that he grew wiser and alone. made an attempt by way of this explanation. It is rather unfortunate that the High Court felt that 71. Apart from it, the evidence which he has this explanation should be accepted. The state­ given is rather interesting. According to him ment against Balbir coming for the first time on Beant Singh and Balbir Singh were so close to him 21st December, 1984 itself in the light of the that they used to keep him informed about their settled criminal jurisprudence of this country plans to assassinate the Prime Minister of India. ought to have been rejected outright. Secondly, But relation with Balbir was such that he was not t the High Court found corroboration from the even invited when Balbir Singh was married and confession of Satwant Singh. So far as the therefore it was nothing but casual but still he statement or the confession of Satwant Singh is claims that he had so much of close association concerned, it could not be used against this that he used to be taken in confidence by these accused as we have earlier indicated. two persons. That means that he is one of the 74. Thirdly so far as falcon incident is concerned, conspirators or otherwise he would not have kept we do not know how the High Court felt that that quiet without informing his superiors as it was his incident corroborates the evidence of Amarjit duty to do when the Prime Minister was indanger.

* • 45 - incident. There is no basis for this conclusion of drinks with him. In her statement in Court later the High Court. she also stated that the wives of Rajendra Singh 75. Lastly, it may be noted that so far as this and Shamsher Singh, brother of Beant Singh < 9 accused is concerned, even Bimla Khalsa, the wife belonged to the same biradari . of Beant Singh does not mention anything. iii) Kehar Singh started visiting their 76. In the light of the discussions above, in our house more often after the 'Operation Bluestar'. opinion, so far as this accused is concerned there Beant Singh and Kehar Singh had talked about is no evidence at all on the basis of which his the destruction of the Akal Takht in the Golden conviction could be justified. He is therefore Temple complex on two or three occasions but entitled to be acquitted. become silent when she came. iv) In the last week of July, Beant Singh told her that he had gone to the Gurudwara at Kehar Singh: Moti Bagh at the instance of Kehar Singh and that 77. The finding of guilt recorded by the High they heard highly provocative and inciting Court againit Kehar Singh is a mixture of both speeches there. Beant Singh had told her that he relevant and irrelevant evidence adduced by the would become a "Shaheed" and that she should prosecution. We will consider only those that are look after the children or God will look after them most important and relevant. Material evidence but he never told her that he wanted to kill SmL * against Kehar Singh is the evidence of PW 65, Indira Gandhi. Bimla Khalsa wife of Beant Singh. She was v) In the middle of September, 1984 the examined by the Police on 16th January, 1985 and birthday of the grandson of Ujagar Singh Sandhu 19th January, 1985. This witness although has was celebrated at his residence at Moti Bagh. been declared hostile, but her statement could Though they had not received any invitation, at not be discarded in toto merely because on certain Kehar Singh's instance they attended the party questions she has chosen not to support prosecu­ where many inciting speeches were delivered. tion. It is true that her statement for4he first time during investigation was recorded on 16th Janu­ vi) On 13.10.84 her husband told her that ary, 1985 but it could not be disputed that after all he would be taking Amrit oi) 14.10.84 and when she is the wife of the main accused in this case. She she asked for the reason, he told her that it was has lost her husband on 31st October. She was in order go give up drinking. placed in a situation where it would have been vii) On 17.10.84 she was sent to Gii- very difficult for her to compose herself in a rudwara Sis Ganj alongwith Kehar Singh and manner in which she could give her statement Jagir Kaur to take Amrit there which she did. immediately. It is nobody's case that she has any grudge against anybody. viii) On the evening of 17.10.84 Kehar Singh came and was closetted together with 78. Important circumstances which emerge from Beant Singh on the roof of the house for 15 to 18 the testimony of this witness are: minutes. Satwant Singh who had come to their i) She was married to Beant Singh in 1976 house on the two earlier occasions in the first week through the good offices of her maternal uncle of October, also came. First two talked in low tone and later all the three had meals together. Gurdeep Singh. She asked Kehar Singh what they were talking ii) Kehar Singh's wife Jagir Kaur hailed about on the roof. He said it was about asking from Matloya and she (Bimla) used to call Kehar somebody to take Amrit. When she said why it Singh and Jagir Kaur Phoophi and Phoopha and needed to be kept secret from her, he became there was close friendship between the two silent but he complained to her husband later families. Rajendra Singh son of Kehar Singh who about her having questioned him. was a friend of Beant Singh and often used to have ix) On 20th October, 1984 Beant Singh's 46 family went to Amritsar with Kehar Singh and his that Ex. P. 55 A was written in the handwriting of wife. Originally Beant Singh and Kehar Singh had Beant Singh. It was a *Vak' of a particular day intended to go alone. She has said that she would which was in the following terms: also like to go there and that all of them could go "One gets comfort on serving the Guru. Then in March, 1984. Then he insisted that she should miseries do not come near. Birth and death also go with him, it was decided that Jagir Kaur come to an end and black (wicked) do not have should also go. At Amritsar they stayed with one effect." M.R.Singh that evening while Bimla Khalsa and children and Jagir kaur were listening to the About this 'Vak* having been taken out in the Kirtan, Beant Singh and Kehar Singh went to see Gurudwara, there is some controversy as the the Akal Takht. She also wanted to go but she was witness produced for that purpose Surendra told she could see it next morning. Next morning Singh, PW 55 was not in a position to produce the also, Beant Singh and Kehar Singh left for Akal diary but so far as Beant Singh is concerned, the Takht early in the morning leaving them to follow 'Vak* written by him on a piece of paper in Yellow later. When they were all there again Beant Singh ink in gurumukhi with date 13.10.84 was put on and Kehar Singh went away somewhere and re­ it has been proved by the evidence of Bimla turned 3 to 4 hours later. On their way back again Khalsa. This was admittedly found from the quar­ I the two went away alone to some place for a few ters of Beant Singh on 31.10.84 and it was lying minutes. They purchased a cassette and a photo inside the book 'Sant Bhindrawale'. of Bhindrawale. Beant Singh stayed behind 81. As far as the incident on 17th October is saying that to meet some one and join them at the concerned, Bimla Khalsa in clear terms stated I railway station. They returned to Delhi on 21st that Kehar Singh and Beant Singh had secret October, 1984. talks. She wanted to know it, but she was not given I x) On 24.10.84 Beant Singh insisted on to understand. This kind of secret talk with Beant I her taking Amrit again at RXPuram Gu­ Singh which Kehar Singh had, is a very rudwara but she refused. After he returned from significant circumstance. Apparently Kehar the night duty he went aJongwith Satwant Singh on Singh being an elderly person did not indicate to a Scooter. her about their plan. If the attempt of Kehar Singh was to dissuade Beant Singh then there was no 79. There is only one variation between the occasion for him to keep the matter secret from previous statement and evidence in Court. That his wife. On the contrary he should have relates to identification of Satwant Singh. In the indicated to his wife also what Beant Singh was Court she attempted to say that he was a boy and planning. These talks therefore^as proved by | later explained that at that time he had no beard Bimla Khalsa go a long way in establishing Kehar but the manner in which the boy has been de- Singh being a party to the conspiracy'. | scribed and the occasions when the boy had come to their house, there is hardly any doubt left. 82. Her evidence also indicates that Beant Singh | Apart from it, so far as Satwant Singh is took Amrit on 14th and Beant Singh kept his concerned even if we omit the evidence of Bimla golden 'kara* and ring m the house of Kehar Singh Khalsa, it is not material. But it could not be which has been recovered from the latter. It i doubted that from her evidence that the above clearly goes to show that Kehar Singh knew why 9 circumstances have been established. Beant Singh took Amrit and why he handed over the golden 'kara' and ring to him. It is also clear 80. Next important circumstance is the *Vak\ It from the evidence of Bimla Khalsa that what is alleged that when early morning the worship transpired between Beant Singh and Kehar Singh starts in a Gurudwara, the Granth Sahib is on 14th was not conveyed to her and she was kept opened at random and some message from a page in dark. which is so opened is written on the blackboard as a 'Yak' for the day. It is proved by Bimla Khalsa 83. In this background, the trip to Amritsar of 47 -Beant Singh, Kehar Singh and their families is of Singh and even Satwant Singh has been made to some significance. On October 20, 1984 beant take it and even Bimla Khalsa made to take it Singh and Kehar Singh alongwith their family makes it significant that in all these three of Amrit members went to Amritsar. There is evidence taking Kehar Singh was always with them or indicated by Bimla Khalsa that originally Kehar atleast it could be said, was inspiring them to have Singh and Beant Singh wanted to go alone but it. It also indicates that there was something in ultimately they agreed that the families also could the mind of Beant Singh which was known to accompany. According to the evidence of Bimla Kehar Singh and which he even tried to keep a Khalsa they reached at Amritsar at about 2 to 3 secret from Bimla Khalsa, wife of Beant Singh P.M. and went to Darbar Sahib Gurudwara in the and wanted Beant Singh to have a full religious evening of 20th October. While ladies and purification and confidence. children were listening to kirtan, Beant Singh and 85. There is yet another circumstance. Post-crime Kehar Singh went to see the Akal Takht. Bimla conduct of Kehar Singh. It is in the evidence that Khalsa wanted to accompany them to see the on the day i.e. 31st October, 1984 although Kehar Akal Takht but she was told to see the same on Singh claims to be on leave, he goes to the office the next morning. On the next morning i.e. on at 10.45 A.M. and at that time when the news 21st October, PW 53 was woken up by Kehar I Singh and told that he would attend "Asaki War reached in the Office about the assassination PW Kirtan' in Darbar Sahib. He went alongwith 59 inquired from Kehar Singh as to what had happened? Kehar Singh replied in these words: Beant Singh. The ladies and children went to Darbar Sahib at 8 A.M alongwith PW 53. They "Whosoever would take confrontation with returned home at 11 A.M. Beant Singh and Kehar the Panth, he would meet the same fate." Singh did not return alongwith them. After lunch, This remark shows his guilty mind with that of PW 53 took the ladies and children to the railway Beant Singh. station. Beant Singh and Kehar Singh directly 86. We have discussed some of the main features came to the railway station from where they of the case and it is not necessary for us to go into caught the train to New Delhi. The attempt of p other details which the High Court has discussed. these two persons to keep themselves away from These circumstances by themselves indicate that the company of their wives and children speaks Kehar Singh was a co-conspirator to assassinate volume about their sinister designs. The way in Mrs. Gandhi. which these two avoided the company of the members of the family and PW 53 at whose residence they were.staying and the manner in Satwant Singh: which they remained mysterious if looked at with 87. He was a Constable on security duty at the the secret talks which they had in the house of residence of the Prime Minister. Bimla Khalsa earlier goes to establish that the two were doing something or discussing 88. He was charged under Sec. 302 read with Sec. something or planning something which they 120-B and Sec. 34 for murdering the Prime wanted to keep it as a secret even from Bimla Minister Smt. Indira Gandhi, secondly under Sec. Khalsa. 307 for attempting to murder one Rameshwar Dayal, PW 10 and under Sec.27 of the Anns Act. 84. So far as 'Amrit Chhakna' ceremony is To prove these charges, prosecution has exam­ concerned or taking Amrit is concerned, ordi­ ined Narain Singh, PW 9, Rameshwar Dayal PW narily it may not be significant. It is only a 10 and Nathu Ram PW 64 besides Sukhvir Singh ceremony wherein a Sikh takes a vow to lead the PW3and Raj Singh PW15. PW 27 has.deposed life of purity and giving up all worldly pleasures about the history as to how this person was and evil habits but this unfortunately is a situation recruited in the Police in 1982 and how he which could be understood in different ways. The happened to come to be posted at Teen Murti manner in which Amrit has been taken by Beant 48

Lines and thereafter in the security duty with the started fi™gat her' &£ ^^ Prime Minister. PW 14 Duty Officer at the Teen bulle" and injured. She fell down on the nght Murti Lines has deposed that DAP personnel side. Seeing this he threw the umbrella on the was placed on duty at various duty points at the left side, took out his revolver and jumped on PM's house on weekly basis from Friday to Friday Beant Singh. As a resul fell by Head Constable Dayal Singh the Company from the hands. He sav Satwant Singh throwing Havaldar. The daily duty maintained at Teen his Carbine to the ground on his right side. At Murti Ex. PW 4-C shows that fentryNo . 85 that on guard the morning of 31.10.84 Satwant Singh was put on ITBP personnel arrived there and duty at Gate No. 4 in the AJcbar Road House and secured Satwant Singh. Some other persons also not the TMC Gate and this entry is confirmed by came and secured Beant Singh. He then ran to Ex. PW 15 Daily diary Clerk at that time. The summon the doctor and while going, he noticed arms and ammunition register Ex. PW3A at Teen] ar Dayal PW 10 had Murti Lines also shows that Satwant Singh was The doctor himself issued an SAF Carbine having But No. 80 along- by then. He, Bhatt, the doctor and Nathu Ram with five magazines and hundred live rounds of 99 took her to the escort car which had arrived near of ammunition. He signed the register in token and placed her in the rear seat. By this time, Smt. of the receipt. PW 3, the Armoury Incharge Sonia Gandhi had also arrived and Smt. Gandhi confirms this. There is also evidence to indicate was taken to AIIMS accompanied by Bhat, that this person manipulated his duty and was put Dhawan and Fotedar on the Front seat and the on the TMC gate where ultimately the incident doctor and Sonia Gandhi on the back seat. He took place on the morning of 31.10.1984. went to I PW taken to AIIMS in another car. There she was taken to the eighth floor and he was given the duty The of controlling the crowd. At about 10 or 10.15 The A.M. R.P.Kochhar, PW 73 arrived and this PW9. This witness gave a statement to Kochhar in the stated that he was on duty at about 7.30 A.M. in doctors' room which was recorded by him and Ministe sent to Tuglak Road Police Station which is the ing to him at 8.45 A.M. he with an umbrella took pj^ jn ^^ £ase up his position near the entry gate as he came to Akbar 90. His testimony is corroborated by the First TV Information Report and also by the two other eye w tnesses and he was to ngwi her^ holding an ' Rameshwar Dayal and Nathu Ram umbrella to protect her from the sun. At whose presence on the spot could not be doubted. AM e Nathu was in the personal staff of the Prime PW Private Minister and himself _ _K_. Dhawan. Then w received injuries. Apart from it, this evidence of over to'the right side and held the umbrella directwitnesses also finds corroboration from the Ex.P.19. They post-mortem report, recovery of cartridges and when they were about 10 ft. therefrom he saw that arms on the sPot and the evidence of the Doctor the gate was open and he also saw Beant Singh on and thf exPert who taIlied |he bullets. Under the left side and Satwant Singh on the right side, circumstances the former in a Safari suit and the later in the Satwant not taken into > with a Carbine stengu consideration, still there is enough evidence At that time Beant Singh lookout his revolver which conclusively establish his part in the from the right dub and fired at Smt. Gandhi and offence and in this view of the matter there ap- immediatcly thereafter Satwant Singh also Pears !° be .no reason ' with two 49 our opinion, therefore, the appeal ofSatwant RAY, J.: Singh deserves to be dismissed. 1. I have perused the judgments prepared by my 91. Then is the question of sentence which was learned brothers Hon'ble OzaJ and Hon'ble argued to some extent. But it must be clearly Shetty, J. I fully concur with the views expressed understood that it is not a case where X is killed by in these judgments. Howeversince the matter is Y on some personal vendetta. The person killed important I like to deal with two aspects of the is a lady and no less than the Prime Minister of this case i.e. whether trial in Tihar Jail is vitiated as ijt Country who was the elected leader of the people. infringes the right of the accused to have open In our country we have adopted and accepted a public trial and secondly, whether the confession system wherein change of the leader is permis­ of accused Satwant Singh being not made in the sible by ballet and not by bullet. The act of the manner prescribed under Section 164 of the accused not only takes away the life of popular Code of Criminal procedure is admissible in leader but also undermines our system which has evidence and whether the same can be relied been working so well for the last forty years. There upon. is yet another serious consideration. Beant Singh and Satwant Singh are persons who were posed 2. A Gazette Notification dated 10.5.1985 was on the security duty of the Prime Minister. They issued under Section 9(6) of the Code of Criminal are posted there to protect her from any intruder Procedure mentioning that the High Court of or from any attack from outside and therefore if Delh: have directed that the trial of this assassi­ they themselves resort to this kind of offence, nation case shall be held in the Central Jail there appears to be no reasons or no mitigating Tihar. Another Notification of the same date was circumstance for consideration on the question issued whereby the High Court was pleased to of sentence. Additionally, an unarmed lady was order that this case will be tried by Shri Mahesh attacked by these two persons with a series of Chandra, Addl. Sessions Judge, New Delhi. This bullets and it has been found that a number of order was made under Section 194 of the Code bullets entered her body. The manner in which of Criminal Procedure, 1973. It was contended mercilessly she was attacked by these two persons on behalf of the appellant that Section 9(6) on whom the confidence was reposed to give empowers the High Court td specify the place her protection repels any consideration of where the Sessions Court shall hold its sittings reduction of sentence. In this view of thfe matter, ordinarily. It does not empower the High Court even the conspirator who inspired the persons to direct the holding of a court in a place other who actually acted does not deserves any leniency than the usual place of sitting in court for trial of in the matter of sentence. In our opinion, the a particulai case. It is only in a particular case if sentence awarded by the trial court and main­ the Court of Sessions is of opinion that it will be tained by the High Court appears to be just and for the general convenience of the parties and proper. witnesses to hold its sittings at any other place in the Sessions Division, it may, with the consent of the prosecution and the accused, sit at that I 92. In the light of the discussions above Criminal place for the disposal of the case. The High Court Appeal No. 180/87 filedb y accused Kehar Singh has not been given any such power to order and Criminal Appeal No. 182/87 file by accused holding of court at any other place than the court Satwant Singh are dismissed. Conviction and where generally the sittings of the Court of Ses­ sions are held or where usually the Court of sentence passed against them are maintained * whereas Criminal Appeal No. 181/87 filed by Sessions sit. It was therefore, urged that the Balbir Singh is allowed. Conviction and sentence impugned order is wholly bad and arbitrary. It passed against him are set aside. He is in custody. has also been urged in this connection that speedy He be set at liberty forthwith, if not wanted in trial and trial in an open court is fundamental right connection with any other case. guaranteed by article 21 of the Constitution of i 50 India. The holding of trial in Tihar Jail as directed ^ connection that various representatives of the by the High Court is a clear breach of this press including representatives of international * fundamental right and as such the entire trial is news agency like BBC etc. were allowed to attend vitiated. It has also been urged in this connection the proceedings in court subject to the usual that an application was filed on behalf of the regulations of the jail. It is pertinent of mention accused , Kehar Singh before the Court* on that Section 327 of the Code of Criminal Proce­ 17.5.1985 objecting to the holding of trial in jail. dure provides that any place in which any crimi­ This application, of course, was rejected by order nal court is held for the purpose of inquiring iiUo dated 5.6.1985 by the Magistrate by holding that or trying any offence shall be deemed to be an the trial in Tihar Jail was an open trial and there open court, to which the public generally may was no restriction for the public so minded to go have access, so far as the same can conveniently to the place of trial to witness the same. As regards contain them. The place of trial in Tihar Jail the first objection the fixing of the place of sitting according to this provision is to be deemed to be of Court of Sessions was made prior to the an open court as the access ofthe public to it was enforcement of the Code of Criminal Procedure not prohibited. Moreover, it has been submitted J Code Amendment, 1973 by the executives. Under on behalf of the prosecution that there is nothing the amended Criminal Procedure Code 1973, to show that the friends and relations of the Section 9(6) has conferred power on the High accused or any other member of the public was Court to notify the place where the Court of prevented from having access to the place where Sessions will ordinarily hold its sittings within the trial was held. On the other hand, it has been Sessions Division in conformity with the policy of stated that permission was granted to the friends separation of judiciary from the executive. It is and relations ofthe accused as well as to outsiders also to be noticed that the High Court may notify who wanted to have access to the court to see the place or places for the sittings of the Court of the proceedings subject, of course, to jail regula­ Sessions. Thus the High Court can fix a place tions. Section 2(p) Criminal Procedure Code other than the Court where the sittings are ordi­ defines places as including a house, building, narily held if the High Court so notifies for the tent, vehicle and vessel. So court can be held in ends of justice. However, the use of the words a tent, vehicle, a vessel other than in court. "ordinarily" by itself signifies that the High Court Furthermore, the proviso to Section 327 Crimi­ in exercise of its powers under Section.9(6) of the nal Procedure Code provides that the presiding said Act may order the holding of court in a place Judge or Magistrate may also at any stage of trial other than the coUrt where sittings are ordinarily by order restrict access ofthe public in general, or held if the High Court thinks it expedient to any particular person in particular in the room or do so and for other valid reasons such as security building where the trial is held. In some cases trial of the accused as well as of the witnesses and also of criminal case is held in court and some restric­ of the Court. The order of the High Court notify­ tions are imposed for security reason regarding ing the trial of a particular case in a place other entry into the court. Such restrictions do not than the Court is not a judicial order but an detract from trial in open court. Section 327 * administrative order. In this case because of the proviso empowers the Presiding Judge or Magisr • • trate to make order denying entry of public in surcharged atmosphere and for reasons of secu- * court. No such order had been made in this case rity, the High Court ordered that the trial be held denying access of members of public to court. in Tihar Jail. Therefore, it cannot be said that the • trial is not an open trial because of its having been 3. Trial in jail does not by itself create any held in Tihar Jail as there is nothing to show that prejudice to the accused and it will not be illegal. the public or the friends and relations of the In re T.R Ganeshan AIR 1950 (Madras) 696 at 699, it has been held that:- accused were prevented from having access to the * placeof trial provided the space ofthe court could "Section 352 empowers the magistrate to accommodate them. It is also to be noted in this *

51 hold his court in any place, provided it is done impossible for a Magistrate to hold open publicly and the Court premises is made acces­ Court in Jail. There may be circumstances sible to the public, there can be no objection to in which for reasons of security for the accused the holding of the trial within the jail or for the witnesses or for the Magistrate compound in the recreation room which is himself or for the valid reason the Magistrate strictly outside the jail premises proper. may think it proper to hoi J Court inside jail Where the public have access to the court­ building or some other building and restrict room and the trial is conducted in open view, the free access of the public. There is, however the holding of the trial within the jail com­ nothing in the record of this case to show that pound will not cause prejudice to the accused there was any such reason which made the and will not be illegal, merely because it Magistrate decide in favour of holding the trial relates to an offence committed within the jail in a jail." premises, where the trying Magistrate is in no 7. Similar observation has been made in the case way connected with the jail department." of Kailash Nath Agarwal and another V 4. In the case of Saliai Singh and Others v. Emperor. AIR 1947 (Allahabad) 436. . EmperorAIR 1917 (Lahore) 311 the trial of the 8. This decision has been relied upon in the criminal case was held in jail. It was contended case of Narwarsingh and Ors. V State. AIR 1952 that the whole trial was vitiated. It has been held (Madhya Bharat) 1932. that :- i 9. In the case of Richmond Newspapers, Inc. V "There is nothing to show that admittance was Common Wealth of Virginia United States Su­ refused to any one who desired it, or that the preme Court Reports 65 L. Ed.2nd 973 before the prisoners were unable to communicate with commencement of fourth trial on murder their friends Counsel, No doubt, it is difficult charges, counsel for the defendant moved that the to get Counsel to appear in jail and for that trial be closed to the public. The prosecutor reason, if for no other, such trials are undesir- stated that he had no objection, and the trial * able, but in this case the Executive Authorities court- apparently relying on a Virginia statute were of the opinion that it would be unsafe to Providing that in the trial of all criminal cases, hold the trial elsewhere." "the court may, in its discretion, exclude from the 5. The trial was therefore, held to be not vitiated. trial any persons whose presence would impair the conduct of a fair trial, provided that the right 6. In Prasanta Kumar Muklierjee V The State AIR of the accused to a public trial shall not be 1952 (Calcutta) violated"-ordered that the courtroom be kept 91 at 92 the petitionerwas tried along with several clear of all parties except the witnesses when they others on a charge under Section 1471.P.C and testified. Later that day a newspaper and its two the trial took place inside the Hooghly Jail. In reporters, who had been present at the time the accordance with the order made by the magis­ order was issued but who made no objection, trate who was posted at Serampore. It was con­ sought a hearing on a motion to vacate the closure tended by thq learned Counsel on behalf of the order. After a closed hearing on the motion at accused that the trial inside the Hooghly jail was which counsel for the newspaper argued that improper and prejudiced the accused in his de­ constitutional considerations mandated that fence. It was observed that:- before ordering closure, the court should first decide that the right of the defendant could be "The ordinary rule is that the trials are to be protected in no other way, the court denied the held in open Court. While there is nothing in motion to vacate and ordered the trial to continue law to prevent a magistrate by S.352, Criminal with the press and public excluded, expressing his P.C., the very nature of a jail building and the inclination to go along with the defendant's restrictions which areTieceSsarily imposed on motion so long as it did not completely override any one visiting jail, would make it ordinarily ^^^HH 52 all rights of everyone else. Subsequently the court may pass order for hearing the case in Judge granted a defense motion to strike the camera. prosecution's evidence and found the defendant 12. In the case of Cor Lillian Mc. Pherson WOran not guilty of murder, and the court granted the Leo Mcpherson AIR 1936 (PC) 246, a divorce suit newspaper's motion to intervene nunc pro tunc in was heard in the Judge's Library. Public access the case. The newspaper then petitioned the to the court-rooms was provided from a public Virginia Supreme court for writs of mandamus corridor. There was no direct access to the library, and prohibition and filed an appeal from the trial which was approached through a double swing court's closure order, but the Virginia Supreme door in the wall of the same corridor. One wing Court dismissed the mandamus and prohibition of the door was always fixed. A brass plate with petitions and, finding no reversible error, denied the word "private" on it was attached to it. Both the petition for appeal. On certiorari, the United the counsel and the Judge were not in robes, and States Supreme court reversed the order. Vir­ when the Judge took his seat he announced that ginia Chief Justice who delivered the majority he was sitting in open Court, and that the library judgment of the Court expressed the view that as the place of trial there was no intention of there is a guaranteed right of the public under the shutting out anybody though a regular court-room First arid Fourteenth Amendments to attend was available. It was held that:- criminal trials and that absent an overriding interest articulated in findings, the trial of a "Every Court of justice is open to every subject criminal case must be open to the public, and of the King. Publicity is the authentic hall­ emphasized that in the case at bar the trial judge mark ofjudicia l as distinct from administrative made no findings to support closure, no inquiry procedure and a divorce suit is not within any was made as to whether alternative solutions exception. The actual presence of the public is would have met the need to insure fairness, and never of course necessary. The court must be there was no recognition of any right under the open to any who may present themselves for Constitution for the public or press to attend the administration." trial. 13. These observation were made following the t 10. It has already been stated hereinbefore that judgment in the case of Scott V Sco/r(supra). in the instant case though the trial was held in 14. All cases have been considered by this Court Tihar Jail for reasons of security of the accused in Naresh Shridhar Mirajkar and Ors. V State of as well as of the witness and of the court and also Maharashtra and Anr.1986 (3) SCR 744 wherein because of the surcharged atmosphere,there was it has been observed that:- no restriction on the public to attend the Court, if " while emphasising the importance of they so minded. Therefore, this trial in the instant public trial, we cannot overlook the fact that case in Tihar Jail is an open trial and it does not the primary function of the judiciary is to dc prejudice in any manner whatsoever the accused. justice between the parties who bring their 11. It has been urged referring to the case Scott causes before it. If a judge trying a cause, is &Anr. V Scott, 1911-13 All.E.R. Rep. 1 that the satisfied that the very purpose of finding truth broad principle is that the administration of in the case would be retarded, or even justice should take place in open court except in defeated if witnesses are required to give three case such as suits affecting wards,- lunacy evidence subject to pubic gaze, is it or is it not proceedings and thirdly cases where secrecy, as open to him in exercise of his inherent power for instance, the secrecy of a process of manufac­ to hold the trial in camera either partly or fully? ture or discovery or invention- trade secrets is If the primary function of the trial is to do of the essence of cause. Therefore, it recognises justice in causes brought before it, then on that in cases where the ends of justice would be principle, it is difficult to accede to the propo­ defeated if the case is not heard in camera the sition that there can be no exception to the rule #

53

that all causes must be tried in open court. If public in general cannot share. Considering the principle that all trials before courts must the nature of the inquiry which the Advisory be held in public was treated as inflexible and Board has to undertake, we do not think that universal and it is held that it admits of no the interest of justice will be served better by exceptions whatever, cases may arise whereby giving access to the public to the proceedings of following the principle, justice itself may be the Advisory Board." defeated. That is why we feel no hesitation in holding that the high Court has inherent juris­ 17. I do not think it expedient to consider this diction to hold a trial in camera if the ends of aspect of the matter at this juncture in view of the justice clearly and necessarily require the explicit provision made in Section 327 of Code of Criminal Procedure, 1973 corresponding to Sec­ adoption of such a course." tion 352 of the old Criminal procedure Code " In this connection it is essential to which enjoins that the place in which any criminal remember that public trial of causes is a court is held for the purpose of inquiring into or means, though important and valuable, to trying any offence shall be deemed to be an open ensure fair administration of justice, it is a cou rt. means, not an end. It is the fair administration 18. The confession of accused No.l, Satwant of justice which is the end of judicial process, * and so, if ever a real conflict arises between which was recorded in Tihar Jail by the Link Magistrate, Shri Bharat Bhushan has been fair administration of justice itself on the one vehemently criticised by the learned counsel hand, and public trial on the other, inevitably, Mr. Ram Jethamalani on the ground that the • public trial may have to be regulated or confession being not recorded in open court as controlled in the interest of administration of required under the provisions of Section 164 of justice." Criminal Procedure Code, is inadmissible in 15. Though public trial or trial in open court is evidence and it cannot be adhered to for convict­ the rule yet in cases where the ends of justice ing the accused. This submission does not hold would be defeated if the trial is held in public, it good in view ofthe pronouncement of this court in is in that case the Court has got inherent jurisdic­ Hem Raj Devilal v. The State ofAjmer AIR 1954 tion to hold trial in camera. Therefore, the (SC) 462 wherein it has been held that:- holding of trial in jail cannot be said to be illegal "No doubt the confession was recorded in and bad and entire trial cannot be questioned as jail though ordinarily it should have been vitiated if the High Court thinks it expedient to recorded in the Court House, But that.irregu­ hold the trial in jail. The submission of the larity seems to have been made because no­ learned counsel on behalf of the appellant on this body seems to have realized that that was the issue is not sustainable. appropriate place to record it but this circum­ 16. This court while considering the plea made on stance does not affect in this case the voluntary behalf of the detenu that the proceedings ofthe character of the confession." advisory Board should be thrown open to the 19. In Ram Chandra and Anr. v. State of Uttar public in the case ofA/C Roy, etc. v.Union of India Pradesh the appellant was sent to Naini jail on and Anr. 1932 (2) SCR 272 at 354 held that :- 13th July. He was brought before a Magistrate "This right to a public trial is not one of the on 17th July but he refused to make any guaranteed rights under our constitution as it is confession. On 7th October a letter signed by the under the 6th Amendment of the American appellant was sent to the District Magistrate, Constitution which secures to persons charged Allahabad, through the Superintendent of the with crimes a public, as well as a speedy, trial. Jail to the effect that he wanted to make a confes­ Even under the American Constitution, the sion. At about this time he was kept in solitary right guaranteed by the 6th Amendment is confinement and that the police officer who was held to be personal to the accused, which the investigating this case went to the Naini Jail on 54

8th and 9th October. The District Magistrate methods of performance are necessarily forbid­ deputed Smt. Madhuri Shrivastava to record den, applied to judicial officers making a record confession. She went to Jail on 10th October and under Section 164. and , therfore, held that the recorded the confession in jail. Before Magistrate could not give oral evidence of the recording the confession the magistrate did not confession made to him which he had purported attempt to ascertain why he was making the to record under Section 164 of the Code. confession after such a long lapse of time. She in Otherwise all the precautions and safeguards her cross-examination said that she thought it laid down in Ss 164 and 364, both of which had to improper to record his statement in Court and be read together, would become of such trifling during court hours. She was not aware of the rules value as to be almost idle. framed by the Government that confession is to 21. It has been urged on behalf of the respondent be recorded ordinarily in open court and during that if the confession is not recorded in proper court hours unless for exceptional reasons it is not form as prescribed by Section 164 read with feasible to do so. She also did not apprise the Section 281 which corresponds to earlier Section accused that he is not, bound to make any 364, it is a mere irregularity arid it can be cured statement and such statement if made may be by Section 463 on taking evidence that the used against him. She gave the usual certificate statement was recorded duly and it has not that the accused made the statement voluntarily. injured the accused in defence on merits. This In these circumstances it was held that the question came up for consideration in this Court confession was not recorded in accordance with in the case of State of Uttar Pradesh v. Singhara law and the accused was not explained that he Singh and Others MR 1964 (SC) 358. It has been was not bound to make any statement and if any observed that:- statement is made, the same will be used against him. It was therefore, held that the confession was "What Section 533 therefore, does is to permit not a voluntary one and the same cannot be used oral evidence to be given to prove that the in convicting the accused. procedure laid down in S.164 had in fact been followed when the Court finds that the record 20. Thus the reason for not taking into produced before it does not show that that was consideration the confession was that the manda­ so. If the oral evidence establishes that the tory requirement of explaining to the accused as procedure had been followed, then only can provided in section 164(3) of Criminal Procedure the record be admitted. Therefore, far from Code, was not observed before the recording of showing that the procedure laid down in S.164 confession and as such the confession was'not a # i is not intended to be obligatory, S.533 really voluntary one. The recording of confession in jail emphasises that that procedure has to be by itself was not held to invalidate the confession followed. The section only permits oral evi­ by this Court. It has been urged by Mr. dence to prove that the procedure had actually Jethamalani that a confession not recorded in been followed in certain cases where the the manner prescribed in Section 164 Cr.P.C. record which ought to show that does not on the and if a certificate as required to be appended face of it do so." befbw the confession is not made in accordance with the prescribed terms, is inadmissible in 22. In Ranbir Singh and Ors.v. Emperor AIR 1964 evidence. In support of this submission reference (SC) 358 the accused was taken into the thana was made to Nazir Ahmed v. King Emperor.AIR compound and the Magistrate who is a retired 1936 (PQ253 (2). In this case the Judicial Com­ District Judge recorded his statement in the open mittee observed that the principle applied in at 9 p.m. The Magistrate did not tell him that he Taylor v.Taylor (187'6) 1 Chancery Division 426 to was a Magistrate and he did not satisfy himself by a court, namely that where a power is given to questioning him whether he was making the do a, certain thing in a certain way, the thing must confession voluntarily, although he states quite be done in that way or not at all and that other- definitely that he was satisfied by observation

r 55 that the man was making a voluntary statement, ing confession shall explain to the person making It was observed that the failure of the Magistrate confession that he is not bound to make a to question the accused as to his making the confession and -if he does so it may be used as ^confession voluntarily is a radical and fatal evidence against him and upon questioning the defect, which cannot be cured by Section 533 of person if the Magistrate has reasons to believe the Criminal Procedure Code. The confession that it is being made voluntarily then the confes- % was held inadmissible. sion will be recorded by the Magistrate. The

23. In the case of Pa/tap Smg/lV. The Crown\925 compliance of the sub-section (2) of Section 164 I.L.R.(Lahore Series) 415 it does not appear from is therefore, mandatory and imperative and non- the confession that the provisions of Section compliance of it renders the confession inadmis- 164(3) i.e. to explain to the person who is to make sib,e in evidence. Section 463 (old Section 533) it that he is not bound to make a confession at all of the Code of Criminal Procedure provides that and that if he does so, it may be used as evidence whe,re the questlons and answers regarding the against him, were not applied by the Magistrate. confession have not been recorded evidence can Question arose whether such a defect in the be adduced to prove that in fact the requirements confession can be cured by Section 533 Criminal of sub-section (2) of Section 164 read with Section Procedure Code. It was held thata defect in form 281 have in fact been comphed with. If the Court is curable and a defect in substance is not. It was comes to a finding that such a compliance had in further held that "If as a matter of fact the fact bee^ made the mere °m'SS'on to record the statement was duly recorded, that is to say, after same in th,e ProPer form w'1,1 "ot render " ,nadr™- the required explanation had been given, but the sible evidence and the defect is cured under Magistrate had failed to embody that fact in the Section 463 (Stc{[on 533 of the old Criminal certificatesuchadefectwouldbebecurable.Ifthe Procedure Code) but when there is non-comph- explanation had not in fact been made the state- ance of tne mandatory requirement of Section ment could not be held to have been 'duly made' 164<2) Criminal Procedure Code and it comes and section 533 could not be appealed to." out in evidence that no such explanation as envisaged in the aforesaid sub-section has been 24. In Pargv Emperor 1931 Cr.LJ. 97 it has been given t^ the accused by the Magistrate, this sub- held that in recording a confession it is the duty stan{ia, defect cannot be cured under Section 463 of the Magistrate to satisfy himself in every Criminal pr0Cedure Code, reasonable way that the confession is made voluntarily and further it is the imperative duty of 21- ^ Abdul Rajak Muriaja Dafedar v. State of the Magistrate to record those questions and Maharashtra 19701(1) SCR 551 it was observed answers by means of which he has satisfied that the appellant himselfnever said that he made himself that the confession is in fact voluntary. the confession on account of any inducement or Omission warn the accused that he was making coercion on the Part of the Police- The aPPe"ant a confession before Magistrate and to record the ™ kTV^^ (°\3 da^s from °ct?^r steps taken by the Magistrate to see that the 25 to October 28, 1966 and on October 28,1966 confession was made voluntarily is a substantial the Executive Magistrate made the preliminary defect not curable by Section 533 Criminal Pro- questioning of the appellant, gave him a warning • cedure Code. and sent him back to District jail at Sangli. On the next day the appellant was produced before the 25. The High Court of Orissa in the case of Magistrate and the confession was recorded. The Ambaiv. Vie State 1966 Cr.LJ. 651 has held that appellant had thus spent four days in judicial Section 533 can cure errors of forms and not of custody and he was not under the influence of the substance. investigating agency for at least four days. Again 26. On a consideration of the above decisions it is he had 24 hours to think after he was told by the manifest that if the provisions of Section 164(2) Magistrate that he was not bound to make any whioh require that the Magistrate before record- confession and if he made one it would be used 56 against him. It was held that the confession could co-accused without full and strong corrobo­ not be said to be not voluntary. ration in material particulars both as to the crime and as to his connection with that crime. 28. In Dagdu and on. etc. v. State of Maharashtra AIR 1977 (SG) 1579 eight confessions were 31. In the instant case the accused Satwant Singh recorded by a Sub-Divisional Magistrate, Devidas who was In police custody was produced before Sakharam Pawar (PW23) without complying the Magistrate Shri S.L. Khannaon29.11.1984. with the mandatory provisions pf Section 164 of On that day the accused made an application the Code of Criminal Procedure. He made no (Ext.PW 11/A) stating that he wanted to make a effort to ascertain from any of the accused statement about the facts concerning Indira whether he or she was making the confession Gandhi Assassination Case. The Magistrate voluntarily. Nor did he ask any of the accused directed the remand of the accused in judicial whether the police had offered or promised any custody till 1.12.1984 giving the accused time to incentive for making the confessional statement. reconsider and reflect. The Magistrate also told He also did not try to ascertain for how long the him that he was not bound to make any statement confessing accused were in jail custody prior to and if any statement is made the same might be his production for recording the confession. used against him. The Magistrate also directed to There was no record to show whether the accused send a letter to the Secretary, Legal Aid Commit­ were sent after they were given time for reflection. tee to provide legal assistance to the accused at In none of these confessional statements there the expense of the State. On 1.12.1984, the was a memorandum as required by section 164 Magistrate enquired of the accused whether he of the Code of Criminal Procedure that the wanted to make a statement whereon the Magistrate believed "that the confession was accused stated that he wanted to make state- voluntarily made". It was observed by this Court ment. He allowed to consult his counsel, Shri I.U. that:- - Khan, Advocate who conferred with him for " The failure to observe the safeguards pre­ about 15 minutes privately, as the accused scribed therein are in practice calculated to insisted that his statement be recorded , the impair the evidentiary value of the confes­ application was sent by the Magistrate, Shri S.K. sional statements." Khanna to the Link magistrate, Shri Bharat Bhushan for recording his statement. Before 29. It was further observed that- recording his statement Dr.Vijay Kumar was "Considering the circumstances leading to called to examine the accused. Dr.Vijay Kumar the processional recording of the eight confes­ stated in his report (Ext.PW 11/B) that in his sions and the abject disregard, by the Magis­ opinion the accused is fit to make his statement. trate , of the provisions contained in Section It appears from Ext.PW 1 l/B-2 as well as from . 164 of the Code and of the instructions issued the questions and answers which were put to the by the High Court, we are of the opinion that accused (Ext.PWll/B-3) that the LinkMagis- ' no reliance can be placed on any of the confes­ trate, Shri Bharat Bhushan warned the accused sions." that he was not bound to make any confessional • statement and in case he does so it may be used 30. In Ram Prakash v. The State of Punjab 1959 against him during trial. The accused in spite of SCR 1219 it was held that:- this warning wanted to make a statement and "A voluntary and true confession made by an thereafter the confessional statement Ext, PW accused though it was subsequently retracted 11/C was recorded by the Link Magistrate. In the by him, can be taken into consideration certificate appended to the said confessional against a co-accused by virtue of Section 30 of statement it has been stated that there was no the Indian Evidence Act, but as a matter of pressure upon the accused and there was neither prudence and practice the Court should not any police officer nor any body else within the act upon it to sustain a conviction of the hearing or sight when the statement was re- 57

• corded. Therefore, it appears that the accused emerged out of her house No 1, Safdarjang Road was put the necessary questions and was given the followed by Nathu Ram (PW-64) and her Private warning that he was not bound to make any Secretary, R.K. Dhawan. At that time the depo­ statement and in case any statement is made, the nent was holding the umbrella over the head of same might be used against him by the prosecu­ Prime Minister to save her from sun and was tion for his conviction. Of course, no question was moving on her right side. They approached the put by the Magistrate to the accused as to why he TMC gate and when they were about 10 feet from i wanted to make a confessional statement. It also there, he saw that the gate was open. He also saw appears from the evidence of the Magistrate, Shri Beant singh on the left side and Satwant Singh on Bharat Bhushan (Ext. PW 11) that the confes­ the right side. The former was in safari suit and sional statement was made voluntarily by the the latter i.e. Satwant singh was in his uniform. accused. So the defect in recording the statement Satwant singh had a stengun in his hands. At that in the form prescribed is cured by Section 463 of time, Beant singh took out his revolver from the the Code of Criminal Procedure. It is indeed right dub and fired the Prime Minister and appropriate to mention in this connection that the immediately thereafter Satwant Singh also defect in recording the statement in appropriate started firing upon the Prime Minister. The Prime form prescribed can be cured under section 463 Minister was hit by those bullets and injured and of the Code of Criminal Procedure provided the fell down on the right side. Seeing them firing on mandatory provisions of 164(2) namely explain­ the Prime Minister, he throw the umbrella and ing to the accused that he was not bound to make took out his revolver and jumped upon Beant a statement and if a statement is made the same Singh whereupon his (Beant Singh) revolver fell might be used against him, have been complied from his hands. He secured Beant Singh. He with and the same is established on an examina­ * further stated that he noticed Rameshwar Dayal, tion of the Magistrate that the mandatory ASI sustained bullet injuries. The doctor himself provisions have been complied with . came running by then and at his direction he, Mr. 32. The accused No.l, Satwant Singh has been Bhatt, ACP, Sr.Opey and Nathu Ram took her to charged with the murder of Smt. Indira Gandhi, the escort car which had arrived and placed her in Prime Minister of India U/s 302I.P.C. read with the rear seat. He further said that he went to the section 120-B and 34 I.P.C. He has also been hospital in staff car. ASI, Rameshwar Dayal was charged U/s 307 I.P.C for attempt to murder taken in another escort car 10 AIIMS. In his cross-* Rameshwar Dayal. He has further been charged examination he further stated that except for the U/s 27 of the Arms Act. accused Satwant Singh he did not find any con­ 33. The prosecution has examined three eye stable of D.A.P. on duty on31.10.1984 in the P.M. house on the portion through which he passed. witnesses namely PW-9 Narain Singh, PW-10 He also stated that it was incorrect to suggest that Rameshwar Dayal and PW 64 Nathu Ram. Satwant Singh had sustained bullet injuries Prosecution has also examined PW -49 Ganga before Mrs.Indira Gandhi had been fired at. He Singh , Member of ITBP who immediately after also denied the suggestion that he was not present the firing apprehended Satwant Singh. on the spot or that bullets were coming from the f 34. PW-9 Narain Singh, deposed that he was on four sides of Mrs. Indira Gandhi. He also stated duty at 1. Safdarjang Road from 7.30 A.M. on that he was stunned when he saw the bullets 31.10.1984 and the place of duty was, isolation coming from Beant Singh and Satwant Singh. He cordon near the porch. He stated that at 8.45 A.M. also stated that as Mrs. Indira Gandhi he took hold of the umbrella and took his position approached towards TMC gate within its ten feet, near the pantry gate as he came to know that Beant Singh took out his revolver and immedi­ the Prime Minister, Smt.Indira Gandhi had to ately shot at Mrs. Indira Gandhi. meet the foreign T.V. representatives in No.l, 35. PW-10 ASI Rameshwar Dayal deposed to the Akbar Road . At 9.10 A.M. Prime Minister following effect:- 58

- I was on duty on 31.10.1984 at P.M.'s h of 60-65 feet away from the Prime Minister when No.l, Safdarjang Road from 7.30 A.M she was fireda t and stated that he was at a distance P.M. It was a security duty. I was on duty c of only 10/15 steps. attendant in the pilot's car of the Prime n 37/ PW.64 Nathu Ram, EX-Library Asstt. and quired about the P.M.'s Programme. I learnt PerSonnel Attendant to Smt. Indira Gandhi stated that the Minister attend in his deposition to the following effect:- shooting VCR in No. 1, Akbar Road at 9 A.M. As I was going from No.l, Safdarjang Road No.l. 38. On 31.10.1984 I had come on my duty at Akbar road and 7.A.M. to No. 1, Safdarjang Road as Library Asstt. from the nursery, I saw Prime Minister, and Personnel attendant of late P.M., Smt. Indira Mrs.Indii darjane Gandhi. I was required to come in the morning, en tne Road to 1-Akbar e Shri °P library-cum-bed room of the late Prime ICDhawan, H.C. Narain with an nm- Minister and get it cleaned and dusted and then be brella on the right side a little behind her and in attendance upon the late P.M. to do what she Ram following wanted me to do. On 31.10.1984 as well, after Akbar performing the above duties by about 9.05 A.M., from No.l, Safdarj Road. I also started me P"me Minister, Smt. Indira Gandhi was rea As Minister dy to go out with Mr. R.K. Dhawan. The near the Sentry booth link gat . th~ th(k Prime Minister thereupon left the room at 9.05 TMC Gate or Akber front gate, I saw A-M- f°ll°wed tyShri R-K- Dhawan and then Beam Singh, SI and Satwant Singh constable followed by me. She reached the pantry gate with a sten-gun on duty. Satwant singh, constable where shri Narain Sin& was wa,t,n« mth M was in uniform. All of a sudden umbrella in his hand. As the Prime Minister at the Minister with his revolver by emerged out ofthe pantry gate, Shri Narain Singh ened raising t hand and immediately thereaf- °P the umbrella over her and held the said Satwant sineh also fireda t the Prime Minister umbrella in his right hand while the Prime with his revolver by raising his• rieht hand and Minister was moving towards No.l, Akbar Road. immediately thereafter Satwant! At that time, when P.M. was moving towards at Prime Minister with his sten gun No. 1, Akbar Road, Narain Singh was with her on Prime Minister falling. I ran to st the rightsid e holding the umbrella over her while Minister and I was also injured with on the left side Shri R.K Dhawan was moving I fell down and I eot uo. Bv tha* t tii besides her talking to her. I was following Shri Singh H.C had7 thrown his umbrella and had run $•*• Dhawan at that time. I was about two steps to seize and secure Beam Singh and one Lawang bchm? Shn R.K.Dhawan. As all of us came out Sherpa ran to secure them from Akbar Road of the jafari gate, I noticed that the TMC gate was They i.e. Beant Singh and Satwant lying open and Beant Singh SI in safari suit was arms. In the meanwhile, ITBP staff secured standing on our left side while Satwant Singh Beant Singh I Satwant constable in uniform was standing on the right 0 Svhatever side of ours near the TMC gate. As we reached within about 10-11 feet of the TMC Gate, Beant been done". - Singh took out his revolver and started firingo n * 36. In his cross-examination, he stated that the the Prime Minister. Immediately thereafter bullet had come from Satwant Singh side and it Satwam Singh alsQ started firi from his sten. was that bullet which hit h.m He also-state* In gun upon the Prime Minister. Then the Prime fact, I could not have so stated since had a ready Mimster> MfS Indira Gandhi fcu towards ^ told m my statement dated 211.1984 that right side. We were startled. At that ver„y Satwant and Beant Singh had fired auheTnme momem> Namirf $. h threw umbre„a ^ Minister, Smt. Indira Gandhi and injured her. jumped upon Beant Singh and took out his He denied the suggestion that he was at a distance 59 (Narain Singh's) revolver, and secured Beant Singh from their respective service revolver and Singh. Simultaneously, Mr Bhatt and Lawang SAP Carbine. It also appears that Beant Singh Sherpa and other uniformed persons also and accused Satwant Singh were apprehended by arrived there and they secured Satwant Singh PW -9 Narain Singh HC and by the ITBP people. accused. Beant Singh and Satwant Singh threw It has also been specifically stated by PW-9 in their arms on the ground. When Narain Singh got cross-examination that Satwant Singh did not up for bringing the doctor, Dr. Opey arrived on the sustain bullet injuries before Smt. Indira Gandhi spot. When myself, Shri Bhatt, Dr. Opey were in had been fired at. The suggestion on behalf of the the process of removing the Prime Minister, Smt. defence that there was firing from all sides and Indira Gandhi to the car along with Shri R.K. accused Satwant Singh was injured seriously and Dhawan and Narain Singh at that time I noticed Beant Singh died by this firingha s got no basis and that Rameshwar Dayal was also holding his lee in it is unsustainable. injured state on the spot. 41. PW-49 Ganga Singh, L/Naik of ITBPstated 39. In his cross-examination in answer to a in his deposition to the following effect:- question he stated "I saw two persons namely "On31.10.1984Iwas posted on dutyatNo.i; Beant Singh and Satwant Singh with arms. Shri Safdarjang Road from 6 A.M. to 2 P.M. near Narain Singh also had arm with him and none else the main gate in guard room. At 9.15 A.M. I had the arms." heard sound of firing of bullets from the TMC 40. On a consideration and appraisement of the gate. I along with Shri Tersem Singh, Padam evidence of the eye-witnesses, it is clear and Singh, Jai Chand, Daya Nand thereupon took apparent that the accused Satwant Singh and our carbines and went towards TMC gate Beant Singh fired at Smt. Indira Gandhi while she running. We found Prime Minister Madam was approaching the TMC gate accompanied by lying in injured condition on the floor. Near her Private Secretary Shri R.K. Dhawan, Narain the gate there were two Sardars in white Singh, H.C., PW-9 holding an umbrella on her clothes, again said one was in civil dress and the head to protect her from sun accompanying her other was in uniform. The uniformed Sardar w on the right side and Nathu Ram following is present in the court i.e. Satwant Singh. He behind Shri R.K, Dhawan. It also appears that had a carbine in his hand. The other Sardar Beant singh first started firing from his service had a small weapon. Inspector Tersem Singh revolver and simultaneously the accused No.l, made them hands-up. I secured them. I and Satwant Singh also cocked his SAF Carbine Padam Singh secured the uniformed sardar. towards the Prime Minister whereon the Prime The sardar was secured by Jai Chand and Daya Minister fell on the ground on her right side. It Nand. I took into possession a ruck-sack from * has been tried to suggest that the bullets were the shoulder of the uniformed sardar. There­ coming from all the sides and accused Satwant upon, Inspector Tersem Singh asked us to take Singh was seriously injured by such bullets and the two sardars to the guard room. The carbine Beant Singh died. This suggestion was however, and the small weapon were thrown on the denied%by the eye-witnesses and they specifically ground. We then took both of them to the stated that the accused Satwant Singh and Beant guard room. We left them there and Inspector Singh shot on the Prime Minister while she was Tersem Singh asked us to go to our point of approaching the TMC gate and she was about 8- duty. I heard some fire-shots from the guard 10 steps away from the TMC gate. It has been room side and the accused No.l and Beant denied that there was any firingfro m all the sides Singh were lying injured there." and it has" been specifically stated in cross- 42. In cross-examination he stated that 'The examination that the firing was from the front revolver and sten-gun were in the hands of the side which hit the Prime Minister and the said sardars before Shri Tersem Singh made them firing was caused by Beant Singh and Satwant hands-up. It is incorrect to suggest that Satwant 4 60 Singh had already been hit by a bullet when I Carbine Butt No. 80. There is therefore no iota reached the TMC gate. I secured Satwant singh of doubt that the accused No.l, Satwant singh was from the right side. Ruck-sack was on the left present at the TMC gate at No.l, Akbar Road on shoulder. It is obvious from the deposition of PW the fateful morning i.e. on 31.10.1984. It is to be 49 that when he and other ITBP men took Beant noted in this, connec.on that the duty of accused Singh and Satwant Singh to the guard room they Satwant Singh constable was placed at beat No.4 were not at all in injured condition. It has also Akbar Road House on 31.10,1984 as is evident been stated by this witness that the revolver and from entry No. 85 in the Rojnamcha i.e. daily diary SAF carbine were in the hands of two sardars kept at Teen Murti Line but he in conspiracy with before Shri Tersem Singh made them hands-up. Beant singh manipulated his duty at TMC gate on This witness also denied the suggestion that the plea that he was suffering from dysentery and Satwant Singh had already been hit by a bullet having loose motions. This will be obvious from when he reached the TMC gate. The evidence the deposition of PW 43 Constable Deshpal of this witness therefore, contradicts and falsifies Singh No. 1157 who deposed that he was posted the suggestion tried to be made on behalf of the at TMC gate 1, Safdarjang Road, P.M. House defence, i.e. the accused Satwant Singh was w.e.f. 28th October, 1984 from 7 p.m. to 10 p.m. injured already by bullets coming from all sides. and also from 7 a.m. to 10 a.m. He further stated 43. It is pertinent to mention in this connection that he was on duty on 29th, 30th and 31st to the evidence of PW-27 ASI Mangat Ram who October, 1984 at these hours. On 31.10.1984 he was posted as ASI personnel in 2nd Battalion reported in the Line Teen Murti and then took D.A.P. He brought the record relating to his arm and proceeded towards his duty in P.M. Satwant Singh constable No. 1614 in 2nd House. When he reached the P.M. House, the Battalion DAP who was posted on31.10.1934 inC H.C. Kishan Lai No. 1109 told him that Satwant &'D at Teen Murti Line. He also deposed that in Singh who was on duty on beat No. 4 was suffering 27.6.1983 vide order No. 2362-67/ASIP-22nd from loose motions and therefore he should give duty at beat No. 4 while Satwant Singh would take Battalion DAP he was posted in C Company of i Teen Murti IJne. Daily diary maintained at Teen his position duty at TMC gate, as there was latrine Murti 2nd Battalion DAP (Ex. PW14/C) shows near TMC gate. from entry No. 85 dated 30./31.10.1984 that on 44. This clearly shows that Satwant Singh, ac­ the morning oa 31.10. 1984, Satwant Singh cused No.l manipulated his duty from beat No. 4 constable No. 1614 was put on duty at Beat No. 4 to TMC gate in P.M. House and so there is no in the Akbar Road House and not at the TMC doubt about his presence at the TMC gate en • gate and this entry is confirmed by PW 15, the 31.10. 1984 from 7.30.a.m. daily diary clerk at Teen Murti Line. He deposed 45. PW 12 G.R. Prasad, Principal Scientific that entry No'. 85 in Ex. PW 14/A is in his hand and Officer Incharge Ballistic Division, C.F.S.L., is correct. He also stated that the accused Satwant New Delhi had deposed to the effect that the Singh was put on duty at Beat No.4, Akbar Road bullet (marked BC/7) recovered from injury No. in the P.M. House and not at TMC gate and he was * 1 described in the post-martem report was fired given arms as per koth register. The arms and from the 9mm sten-gun (marked W/l). He fur­ ammunitions register (Ex. PW 3/A) at Teen ther deposed that the bullet recovered from Murti Line shows that Satwant Singh was issued 3 injury No.2 was fired from the .38" special SAF Carbine (sten gun) having Butt No. 80 along revolver (marked W/2). This affirms the prosecu­ with 5 magazines and 100 live rounds of 9mm tion case that the accused Satwant Singh and ammunition and that he signed the register in deceased Beant Singh fired shots at Smt. Indira token of its receipt, therefore this goes to show Gandhi from their respective weapons. The the presence of the accused Satwant Singh at the deposition of these independent witnesses is TMC gate in the P.M. house at 1 Akbar Road on corroborated by the confessional statement PW duty from 7.30 A.M. on 31.10.1984 with a SAF 61

11/C made by the accused Satwant Singh. security of Smt. Indira Gandhi has been proved Though the said confession was retracted subse­ without any reasonable doubt. Therefore, the quently by the accused, the same can be used by appeal Nos. 180 and 182 of 1987 are dismissed the Court against the accused in convicting him. and the conviction and sentence of death as con- firmed by the High Court are upheld. The charge In Manohar Singh v. Emperor AIR 1946 (Al­ of conspiracy against accused No.2, Balbir Singh lahabad) 15 it has been held that a confession has not been proved and as such the appeal filed made by an accused can not be used to convict his by him i.e. Criminal Appeal No. 181 of 1987 is co-accused unless there is corroborative evi­ allowed and the judgment of the High Courtis set dence against the co-accused but a person can be aside. The appeliant should be set free forthwith. convicted solely upon his own confession even if retracted if the Court believes it to be true. 46. The law has been well settled in a decision of this Court in Sarwan Singh Rattan Singh V State ofK . JAGANNATHA SHETTY, J: Punjab wherein it has been observed that:- 1. I agree respectfully with the conclusion "In law it is always open to the court to reacned by my learned brother, Mr. G.L.Oza, J., convict an accused on his confession itself in these appeals. I wish, however, in view of the though he has retracted it at a later stage. importance of the questions involved, to give my Nevertheless usually Courts require some own reasons, and to which I attach importance. corroboration to the confessional statement r before convicting an accused person on such 2. These appeals by special feave are directed a statement. What amount of corroboration against the conviction and sentence awarded would be necessary in such a case would always against the appellants by the High Court of Delhi be a question of fact to be determined in the in Criminal Appeals Nos. 28 and 29 of 1986 and light of the circumstances of each case." murder Reference No. 2 of 1986. 47. In the instant case the confessional state­ 3. The crime charged is not simply the murdering ments were corroborated by independent evi­ of a human being, but it i§ the crime of assassina­ dences which clearly prove the guilt of the ac- tion of the duly elected Prime Minister of the . cused. Country. The motive for the crime was not per­ 48. Therefore the charges against the accused sonal, but the consequence of the action taken by Satwant Singh have been duly proved. The the Government in the exercise of constitutional concurrent findings of the Trial Court as will as powers and duties. In our democratic republic, if the High Court that offences under Section 302 the government becomes subversive of the I.P.C. read with Section 120-B, I.P.C and Section purpose of its creation, the people will have the 34 I.P.C. were proved, must be upheld. It is a right and duty to change it by their irresistible gruesome murder committed by the accused who power of ballot and have the Government of theii was employed as a security guard to protect the own choice wisely administered. But no person Prime Minister Indira Gandhi. It is one of the who is duly constituted shall be eliminated by rarest of rare cases in which extreme penalty of privy conspiracies. Indian citizens are committed • » death is called for. to the Constitution.They have faith in the ballot 49. The charge of conspiracy has been elaborately box. They have confidence in the democratic dealt with in the judgments rendered by my institutions. They have respect for constitu­ learned brothers. It appears therefrom that the tional authorities. The assassination of Mrs. charge of conspiracy against Kehar Singh with the Indira Gandhi, the third Prime Minister of India, accused Satwant Singh and Beant Singh since has, therefore, come as a rude shock. It has sent deceased who are the constable and S.I. respec­ shudder through the civilised world. The issues joined in these appeals involve the highest inter- tively posted at the P.M.'s House to look after the est of the whole people of this country, h is a people in groups. So it was called "Darshan Day". matter of great importance to the people of this Unfortunately, she did not adhere to that usual country that the accused be lawfully tried and programme. The "Darshan" was cancelled be­ lawfully convicted or acquitted. A wrongful cause of another engagement. That engagement conviction or a wrongful acquittal may shake the was with well-known actor and writer Peter confidence of the people' in our justice delivery Ustinov. His crew was to record an interview with system. The matter, therefore, requires utmost Mrs. Indira Gandhi for Irish Television. They concern. , were waiting at Bungalow Nol., Akbat Road, the home office of the Prime Minister. Bungalow 4. Trial of the assassin and conspirators for the Nol, Safdarjung Road was the Official residence murder of Mrs. Indira Gandhi has resulted in the of the Prime Minister. The two buildings are conviction. Satwant Singh (A-I), Balbir (A-2) and connected by a narrow cemented pathway. They Kehar Singh (A-3) are convicted of murder under are located practically in one campus, but Section 302 read with Section 120-B IPC Satwant separated by a sentry gate which is known as the Singh is also convicted of murder under Section "TMC Gate". This is the place where hidden 302 read with Section 120-B and 34 IPC, as well hands sent shock waves to the Nation. Mrs. Indira as under Section 307 IPC and Section 27 of the Gandhi at about 9.10 a.m. emerged from her Arms Act. The trial judge has awarded the sen­ house with her loyal assistants and a faithful tence of death on all the three accused. The trial servant. Immediately behind her was Head judge has also awarded other terms of imprison­ Constable Narayan Singh (PW 9) holding an ment on Satwant Singh. The Delhi High Court umbrella to protect her against the Sun. Ramesh- has confirmed the conviction and sentence. war Dayal (PW 10) an Assistant Sub-Inspector, Nathu Ram (PW 64), her personal attendant 5. The prosecution version of the assassination and R.K.Dhawan, Special Assistant were may be briefly told: closely following Mrs. Gandhi. All were on the cemented pathway. Mrs. Gandhi was at the head That in June, 1984, the Indian Army of the entourage. She was approaching the TMC mounted an operation known as "Blue Star gate where Beant Singh, SI was on the left side Operation" by which the Armed Force personnel while Satwant Singh, Constable was on the right entered the Golden Temple complex at Amritsar side. They had managed to station themselves to flush out the armed terrorists. That operation together near the TMC gate. Beant Singh got resulted in loss of life and property as well as exchanged his duty with S.I. Jai Narain (PW 7). damage to the Akal Takht at the Golden Temple. Satwant Singh ought to be at Beat No.4. He, It has offended the religious feelings of some however, managed to get TMC sentry booth by members of the Sikh community. Resentment misrepresenting that he was suffering from dysen­ was expressed even by some of the Sikh employees tery. He was given that place since it was near the of the Delhi Police posted for Prime Minister's latrine. Beant Singh was armed with his service security. The accused persons are Sikhs by faith. revolver while Satwant Singh had SAF Carbine. They had been expressing their resentment When Mrs. Gandhi reached near the TMC gate, openly, holding the Prime Minister responsible Beant Singh opened fire from his carbine [re­ for the action taken at Amritsar. They became volver]. Beant Singh fired five rounds and Sat­ parties to a criminal conspiracy to murder Mrs. want Singh released 25 bullets at Mrs. Gandhi. Indira Gandhi. Then and there Mrs. Gandhi fell down never to get up. She was immediately rushed to the All 6. Mrs.Indira Gandhi, the Prime Minister, had India Institute of Medical Sciences (AIIMS). returned from an official tour of Orissa in the There a team ofdoctors fought their losing battle evening of October 30, 1984. The day followed to save the life of the slain Prime Minister. was Wednesday. In the early hours of every Wednesday, Mrs. Indira Gandhi used to meet 63 the accused guilty of all the charges framed 7. RameshwarDayal (PW 10) who was following against them and sentenced them as earlier Mrs. Gandhi also received bullet injuries as a stated. result of the shots fired by the accused." 11. There were two appeals before the High 8. At the spot of the incident, the two assassins Court of Delhi challenging the conviction and are alleged to have thrown their arms and said 'i sentence. Satwant Singh preferred Criminal have done what I have to do. Now you do what you Appeal No. 28 of 1986. Balbir Singh and Kehar have to do." The personnel of the Indo Tibetan Singh together preferred Criminal Appeal No. 29 Boarder Police (ITBP) pounced on them and of 1986. These appeals were listed along with the took them off to the guard room. What happened Murder Reference No. 2 of 1986, before a Bench inside the guard room is not on the record. The consisting of three Judges. The learned Judges, in fact, however, remains that both the assassins had thecourse of hearing, also paidavisittothescene been shot by the ITBP personnel. They were of the crime to get acquainted with the topogra­ soon removed to the hospital where Beant Singh phy of the place of incident. After considering the was pronounced dead and Satwant Singh was material on record, the High Court accepted found to be critically injured. Satwant Singh Murder Reference 2/86 and confirmed the survived after 15 days's treatment. He is accused conviction and the sentence of death on all the No.l in this case. Balbir Singh and Kehar Singh accused. The High Court also confirmed the are the other two accused. They are said to be other sentences on Satwant Singh. Conse­ parties to the conspiracy to eliminate Mrs. Indira quently, the appeals preferred by the accused Gandhi. Balbir Singh was an S.I. Posted in the were dismissed. security at the residence of the Prime Minister. Kehar Singh was an Assistant in the Directorate 12. In these appeals, the accused are challenging General of Supply and Disposal, New Delhi. He the validity of their trial and the legality of their is related to S.l. Beant Singh. conviction and sentence. The contentions raised as to legality of the trial admit of being sum­ 9. After the investigation, the charge-sheet was marised and formulated thus: filed against the three appellants. They were accused of offences under Section 120-B, 109 and (i) Whether the High Court has power to 34 read with Section 302 of the IPC and also of direct the trial of the case at a place other than the substantive offences under Sections 302 and 307 normal seat of the Court ofSession? (ii) Whether of the IPC and Section 27, 54 and 59 of the Arms the trial inside the jail premises is the very Act. It may be mentioned that the report also antithesis of an open trial? (iii) Whether the trial t names Beant Singh as one of the accused but proceedings were devoid of sufficient safeguards since he had died, the charges against him were to constitute a public trial? And (iv) whether the said to have abated. Court's refusal to call for the statements made by certain prosecution witnesses before the 10. In due course, the accused were committed Thakkar Commission was justified? to take their trial in the Court of Session. In the meanwhile, the High Court of Delhi issued two 13. I will deal with these questions in turn. n6tifications. By one notification, the High Court directed the trial of the case shall be held in the 14. Mr. R.S. Sodhi (amicus curiae) appeared for Central Jail, Tihar according to law. By another accused No.l and Mr. Ram Jethmalani, Senior notification, the High Court directed that "the Advocate, (amicus curiae) appeared for accused case be tried by Shri Mahesh Chandra, Additional Nos. 2 and 3 Mr. G.Ramaswamy, Additional Sessions Judge, New Delhi." In pursuance of the Solicitor General appeared for the State. Both above notifications, the accused were tried in sides of the case have been placed before us with Central Jail, Tihar. The learned trial Judge found care and skill. 64

. # of one division or district. Originally, the trials in Re: Question (i): cases pertaining t0 the ent;re territory were ic I* *• i TT -t. i . . conducted only at the District Court Complex in 2" Winn* J?Tiv V^Z**", "if 2"? T* H«ut With the increase of Sessions Cases, of Sesston at Delht shaH ordmany hold tts the Court of Session was also authorised tohold sittings. On May its sittings at the Parliament Street Courts (now however, issued a notification in exercise of the shifted to Patiala House) in New Delhi and the conferred District Court Complex at Shahdra. It is pointed Criminal out that >Shri Mahesh Chandra himself was Satwant Singh and holding Court at Patiala House in relation to 2" {F1.h. "°Ml °f 1984>Sha" be held in the certain othercases,andtherefore,hecanordinar- Tihar. The ily hold his sittings only at Patiala House even for the present case. It is also submitted that Section "In exercise of the power conferred by Section 9(6) empowers the High Court only to specify the 9(6) of the Code of Criminal Procedure, 1973 place or places at which all, or any class of the the Hon'ble the Chief Justice and Judges of this cases pertaining to a division can be heard and Court have been pleased to order that the trial does not empower the High Court to specify the of the Sessions Case relating to F.I.R. No. 241/ place or places of hearing for individual cases. 84 of the Arms Act-State v. Satwant Singh and The choice of any other place for holding the Ors, shall be held in the Central Jail, Tihar, according to law." sittings, wholly or partly, in any particular case lies within the power of the trial Judge, the trial BY ORDER OF THE COURT ^uc^8e may exercise that power for the general convenience of parties and witnesses when Sd/-(USHA MEHRA) agreed t0 bY both the parties. REGISTRAR" ^- T"e High Court did not accept these submis­ sions. In substance, it was held that the actual 16. On the same day, the High Court passed location of a Court can be decided by the High another order under Section 194 of the Code Court either generally or with reference to a designating Shri Mahesh Chandra, Additional particular court or even with reference to a Sessions Judge as the Judge to try the said case, particular case if there is compelling reason. The Shri Mahesh Chandra was a Senior District and High Court also said that the fact that it is done Sessions Judge at the Courts in New Delhi within with reference to a particular case impairs the jurisdiction of which the offence was commit- nobody's fundamental right and is also not ted. The case of the appellants is that the High discriminatory, as no offender has a vested right to Court has no jurisdiction to issue the first be tried at the usual seat of the Court of Session. notification directing the trial at Tihar Jail. It is argued that Section 9(6) confers power on the 18. The High Court, in my judgment, is right High Court to specify by notification a place or in reaching the above conclusion. places at which criminal trials can be held by the - Court of Session in the Union Territory of Delhi. 19. Section 9(6) provides: The requirement of a notification of the High "Section 9. Court of Session: Court of the place or places where the Court of Session will function is intended to facilitate the (6) The court of session shall ordinarily process of public participation, Such a hold its sitting at such place or places as the notification, it is submitted, has already been High Court may, by notification specify but, if issued by the High Court of Delhi. The whole of in any particular case, the Court of Session is the Union Territory, it is pointed out, comprises of opinion that it will tend to the general I convenience of the parties and witnesses to | bold its sitting at any other place in the 24. The words "place or places" used in Section Sessions division, it may with the consent of the 9(6) apparently indicates that there could be prosecution and the accused, sit at that place more than one place for the sitting of the Court I for the disposal of the case or the examination of Session. The different places may be notified of any witness or witnesses therein." by different notifications. There maybe ageneral notification as well as a special notification. The 20. Sub-section (6) can be conveniently divided general notification may specify the place for the into two parts. The first part provides power to class of cases where Court of Session shall sit for ; the High Court to notify the place or places for the disposal. The special notification may specify the Court of Session to hold its sittings for disposal of same place or a different place in respect of a cases. The second part deals with the power of the particular case. | Court of Session in any particular case to hold its sittings at a lace not notified by the High Court. 25. Adroitly, it is said that the words and sections like men do not have their full significance when [ 21. The real question which we have to determine standing alone. Like men, they are better is, what do the words 'place or places' mean in the * understood by the company they keep. Section context in which we find it in the first part of sub­ 9(4) and Section 194 of the Code are^he closely section (6), and in the legal landscape of other related sections. They may also be examined in allied provisions in the Code? order to understand the true meaning of the word "place or places"in the first part of Section 9(4). 22. There is a great deal of juristic writing on the subject of statutory interpretation, and I make no 26. Section 9(4) reads: attemDt here to summarise it all. I will do it • A elsewhere in this judgment when dealing with "The Session Judge of the Session division, question No. (iv). Here I do not want to spend may be appointed by the High Court to be also more of my time since I need not search for the an additional Sessions Judge of another divi­ meaning of the word. The word 'place' with which sion, and in such case he may sit for the we are concerned has been defined under the disposal of cases at such place or places in the other division as the High Court may direct." Code. Section 2(p) of the code defines 'place'. ft ir It is an inclusive definition.The 'Place* as defined 27. Section 9(4) empowers the High Court to includes a house, building, tent, vehicle, and appoint a Sessions Judge of one division to sit at vessel. such place or places in another division for dis­ 23. "The words, too, are empirical signs, not posal of cases. Tne High Court while so appoint­ copies or models of anything.... The words are ing need not direct him to sit only at the ordinary slippery customers...." Says COLIN CHERRY place of sittings of the Court of Session. There is (On Human Communication at 10). The inter­ no such constraint in Section 9(4). The High pretation of a word must, therefore, depend upon Court may also issue a separate notification *he text and the context. As O. Chinnappa under Section 9(6) specifying the place or places ReddyJ., Said: "If the text is the texture, the where that Session Judge should sit for disposal of context is what gives the colour. Neither can be cases. ignored. Both are important. That interpretation is best which makes the textual interpretation 28. Section 194 provides: match the contextual. A Statute is best inter- "Additional and Assistant Sessions Judges to preted when we know why it was enacted." try cases made over to them. -An Additional {Reserve Bank of India v. Peerless G.F. & I. Co. : Sessions Judge or Assistant Sessions Judge of AIR 1987 SC 1023 at 1042). the division may, by general or special order,

* 66

make over to him for trial or as the High Court 320): may by special order, direct him to try." "Under S.9, sub-Section (2), Criminal P.C. the (Emphasis supplied) Local Government may, by general or special order, in the official gazette, direct at what 29. Section 194 provides power to the High Court place or places the Court of Session shall hold to make a special order directing an Additional its sittings, but until such order is made the or Assistant Sessions Judge of the same division Court of Session shall hold its sittings as here- to try certain specified cases or a particular case. tofore. If the High Court thinks that the Additional or Assistant Sessions Judge should hold the Court at It is contended on behalf of the accused aspecified place, aseparate notification could be that the Local Government has already issued issued under Section 9(6). 30. The argument that a notification directing the Court of Session the first part of Section 9(6) should be read along to be held at Alibag in certain months with the second part thereofhas, in the context, no commencing on dates to be fixed by the Ses­ place. The first part provides power to the High sions Judge of Thana, and that the notification Court. It is an administrative power, intended to dated 5th February, 1931 does not direct any further the administration of justice. The second new place where the Court of Session should part deals with the power of the Court of Session. hold its sitting, and further that the notification It is a judicial power of the Court intended to does not order the Court of Session to hold avoid hardship to the parties and witnesses in a its sitting at Alibag, but has directed a particular case. One is independent of and uncon­ particular Additional Sessions Judge to hold nected with the other. So, one should not be the sitting of his Court at Alibag. Under confused with the other. The judicial power of the s.l93(2) the Local Government had power to Court of Session is of limited operation, the direct Mr.Gundil, the Additional Sessions exercise of which is conditioned by mutual Judge, to try this particular case. The previous consent of the parties in the first place. Secondly, orders of the Local Government were general the exercise of that power has to be narrowly orders under s. 9(2) and there is nothingin Sec. tailored to the convenience of all concerned. It 9(2), to prevent a special order being passed cannot be made use of for any other purpose. This directing at what place a Court of Session limited judicial power of the Court of Session should hold its sitting. If by reason of an out­ should not be put across to curtail the break of plague or any other cause it becomes vastadministrative power of the High Court. necessary or expedient that a Court of Session * hold its sittings inrespect of all the cases at a 31. Section 9(6) is similar to Section 9(2) of the different place or should.try a particular case Old Code (Act 5 of 1898). The only difference at a particular place, the words of s. 9(2) are being that Section 9(2) conferred power on the wide enough to cover such an order. An order State Government to specify the place or places passed under s. 9(2) is an administrative where the Court of Session should sit for the order passed by the Local Government, and purpose of disposal of cases. That power is now the special order of the Local Government in vested in the High Court. The change of authori­ the present case directing the Additional ties was made to keep in tune with the separation Sessions Judge to try this particular case at of judiciary from the executive. The scope of the Alibag does not appear to contravene the sections, however, remains the same. In Laksh- provisions of section 9(2)." maii v. Emperor (AIR 1931 Bom 313), a Special Bench of the Bombay High Court sustained the 32. This appears to be the correct view to be validity of a similar notification issued under taken having regard to the scheme and object of Section 9(2). PatkarJ., expressed his view (at Section 9(2) of the Old Code. 67 33. In Ran jit Singh v. Chief Just ice and others [ 1985 34. It seems to me that the High Court of Delhi A (Vol.28) Delhi Law Times 153] the Delhi High is also right in observing that it is unnecessary to Court while considering the validity of a like hear the accused or any body else before exercis- notification proclaimed more boldly (at 157): ing the.power under section 9(6). Such a hearing, r however, is required to be given by the Court of "Section 9(6) recognises that the Court Session if it wants to change the normal place of of Session if. it wishes to hold its sitting at sitting, in any particular case, for the general * another place can only do so with the consent convenience of parties and witnesses. of prosecution and the accused. As to the specifying of places of sitting of Court of 35. From the foregoing discussion and the deci­ Session no such restriction is there and it is left sions, it will be clear that the impugned notifica­ to the best judgment of the High Court. Of tion of the High Court of Delhi directing that the course, this does not mean that such a power trial of the case shall be held at Tihar Jail is not can be exercised arbitrarily. But then it must be ultravires of Section 9(6) of the Code. * noted that Courts have consistently held that where power is vested in a High Official it Re.Question(ti): must ordinarily be presumed that the power is exercised in a bona fide and reasonable 36. It is argued that public trial is a fundamental manner. Surely, it is a reasonable presumption requirement of the Constitution and is apart of to hold that when the Full Court exercised the constitutional guarantee under Article 21. A its power, like in the present case, directing public trial in jail in the very nature of things is that the Court of Session may hold its sitting at neitherdesirable norpossible. The massive walls, a place other than its ordinary place of sitting high gates, armed sentries at every entrance and considerations of the interest of justice, expe­ the register maintained for noting the names of ditious hearing of the trial and the requirement the visitors are said to be the inhibiting factors of a fair and open trial are considerations which to keep away the potential visitors. People gener­ have weighed with the High Court in issuing ally will not venture to go to jail and it is said, that the impugned notification. It should be borne jail is notionally and psychologically a forbidden in mind that very rarely does the High Court place and can never be regarded as a proper place exercises its power to direct any particular case for public trial. to be tried in jail. When it does so it is done 37. The High Court rejected these contentions. only because of overwhelming consideration The High Court, however, proceeded on the of public order, internal security and a reali­ assumption that "a public trial is a part of the sation that holding of trial outside jail may be Constitutional guarantee under Article 21 of held in such a surcharged atmosphere as to our Constitution. It is unnecessary to deal with completely spoil and vitiate the court atmos­ that aspect in this case. In A.KRoyV. Union of phere where it will not be possible to have a India [1982 (2) SCR 272] Chandrachud, C.J., calm, detached and fair trial. It is these speaking for the Constitution Bench said (at 354): • considerations which necessitated the High Court to issue the impugned notification. "The right to public trial is not one of the ( Decision is taken on these policy considera­ guaranteed rights under our Constitution as it tions and the question of giving a hearing to is under the Sixth Amendment of the Ameri­ the accused before issuing the notification is can Constitution which secures to persons totally out of place in such matters. These are charged with crimes a public, as well as speedy matters which evidently have to be left to the trial. Even under the American Constitution, good sense and to the impartiality to the Full the right guaranteed by the Sixth Amendment Court in taking a decision in a particular case." is held to be personal to the accused which the 68 public in general cannot share." contention that the whole trial is vitiated because it was held in the jail. Counsel for 38. The right of an accused to have a public trial some of the appellants has referred to s. 352, in our country has been expressly provided in the Criminal Procedure Code, but there is nothing code, and I will have an occasion to consider that to show that admittance was refused to any question a little later. The Sixth Amendment to one who desired it, or that the prisoners were the United States Constitution provides "In all unable to communicate with their friends or criminal prosecution, the accused shall enjoy the Counsel. No doubt it is difficult to get Counsel right to a speedy and public trial by an impartial to appear in the jail and for that reason, if for jury...". No such right has been guaranteed to the no other, such trials are usually undesirable, accused under our Constitution. but in this case the Executive Authorities were of the opinion that it would be unsafe to hold 39. The argument that jail can never be regarded the trial elsewhere." as proper place for a public trial appears to be too general. The jail trial is not an innovation. It 41. In Kailash Nath v. Emperor [AIR 1947 All. has been there before we were born. The validity 436.], the Allahabad High Court said that there of jail trial with reference to Section 352 of the is no inherent illegality in jail trials if the Magis­ "ivi j^^^r^i *h code of 1898 since re-enacted as Section 327(1) trate follows the rules oi Sections 352 and the has been the subject matter of several decisions of place becomes something like an open Court. different High Courts. The High Court in this case has examined almost all those decisions. I will 42. The practice of having trials inside jails, as the refer to some ofthemwith laconic details. Before High Court has rightly pointed out, seems to have that, it is better to have before us Section 352 of persisted even after the coming into force of the the Code of 1898. It reads: Constitution. In re: M.& Venkataraman [AIR 1950 Madras 441] the High Court of Madras after "352. Courts to be open - The place in which referring to the decisions in Kailash Nath's case any Criminal court is held for the purpose of and Sahai's case, observed(at 442): inquiring into or trying any offence shall be deemed an open Court, to which the public "Again, if the conveyance of prisoners, generally may have access, so far as the same and the accused to and from the court house can conveniently contain them. or other buildings, will be attended with sen- ous danger of attack, and the rescue of the Provided that the presiding Judge or accused or the prisoners, or with heavy cost Magistrate may, if he thinks fit, order at any to the Government in providing an armed stage of any inquiry into, or trial or, any escort, it may well be within the powers of the particular case, that the public generally,or Judge or Magistrate, after due consideration any particular person, shall not have access or of the public interests and after writing down be or remain in, the room or building used by the reasons in each case, to hold the trials even the Court." inside the jail premises, where the accused are confined."

40. In Sahai SthghV. Emperor [AIR 1917 Lahore | 311], the accused were convicted and sentenced 43. In re:T.KGaneshan (AIR 1950 Madras 696], in the trial held in a jail. There conviction was the Madras High Court was again called upon to challenged before the High Court at Lahore on consider the validity of a jail trial. In this case, the the ground, amongst others, that the trial was trial was held in recreation room which was-within vitiated because it was held in the jail. The High the jail compound. The building consisted of a hall Court rejected the contention stating: and verandah on two sides. It was situated at some distance from the prison walls proper. It was "It is necessary that I should first mention a accessible to the public. The press reporters, 69 some members of the Bar and public also of law and order had become vital problems i attended the trial proceedings. The High Court for Administration. There is every risk of upheld the validity of that trial. The High Court breach of public peace and disturbance of law also said that in the interest of justice and fair trial and order, if the trial is held in an open place. of the case itself that, in certain circumstances The lives of the trial Judge, prosecutor and and in some cases, the public may be excluded. those otherwise involved in the prosecution of the case may be jeopardised. It is on record 44. The Calcutta High Court in Prasanta Kumar that during committal proceeding 'the Magis­ v. The State [AIR 1952 Calcutta 9] and Madhya trate and Prosecutor concerned were threat­ Pradesh High Court in Narwar Singh & Ors. v. ened with dire consequences as they were State[19S2 MP working for a successful prosecution. The circumstances in which the Hon'ble High 193 at 195] recognised the right of the Magistrate Court was pleased to accept the prayer of the to hold Court in jail for reasons of security for Administration for conducting remand and accused, for witnesses or for the Magistrate w w committal proceedings in Central Jail, Tihar himself or for other valid reasons. continue to exist. It is only for the security of the Judge, witnesses, Police Officers and 45. It may now be stated without contradiction I . w that jail is not a prohibited place for trial of others but also for the safety of the accused criminal cases. Nor the jail trial can be regarded themselves that the trial of the case may be held in Central Jail, Tihar." as an illegitimate trial. There can be trial in jail premises for reasons of security to the parties, 47. The letter reveals a grim picture of the then witnesses and for other valid reasons. The enquiry existing situation. It is said that the assassination or trial, howev^, must be conducted in open ofSmt. Indira Gandhi had provoked widespread Court. There should not be any veil of secrecy in violence threatening the security of the State and the proceedings. There should not even be an the maintenance of law and order. The remand impression that it is a secret trial. The dynamics and the committal proceedings had to be taken in of judicial process should be thrown open to the Tihar Jail since the Magistrate and Prosecutor public at every stage. The public must have were threatened with dire consequences. It is also reasonable access to the place of trial. The said that such circumstances continued to exist Presiding Judge must have full control of the when the case came up for trial. The letter ends Court house. The accused must have all facilities with a request to have the trial of the case in Tihar to have a fair trial and all safeguards to avoid Jail for the security of the Judge, witnesses, Police prejudice. Officers and also for the safety of the accused themselves. The High Court also has taken note 46. In the present case there is no reason to find of the events that immediately followed the fault with the decision of the High Court to have assassination of Smt. Gandhi. Beant Singh one the trial in Tihar jail. The records show that the of the assassins was shot dead and Satwant Singh situation then was imperative. The circumstances who is the accused herein received near fatal gun which weighed with the High Court may be shot injury. gathered from a letter dated May 8, 1985, addressed by the Home Secretary to the Registrar 48. That is not all. There was unprecedented of the High Court. The relevant portion of the violence aftermath in the national capital and letter reads: other places. Frenzied mob armed with whatever they could lay their hands were seen besieging "The case is of very special nature and of passing sikhs and burning their vehicles, as doc­ utmost importance. The assassination of the tors in the hospital fought their vain battle to save late Prime Minister had provoked violence the life of Mrs. Indira Gandhi. Even President and security of State besides the maintenance Zail Singh's cavalcade, making its way from the 70 Airport to the hospital was not spared. The principle of public trial. It declares that the place reaction of outrage went on unabated followed of inquiry and trial of any offence shall be deemed by reprisal killings and destruction of properties, to be an open Court. It significantly uses the words The local police force was baldly shaken. They "open Court". It means that all justice shall be could do little even to contain the violence. The done openly and the Courts shall be open to Army had to be deployed to stem the .tide of public. It means that the accused is entitled to a deluge. The new Prime Minister, Mr. Rajiv public trial and the public may claim access to the Gandhi made an unscheduled broadcast to the trial. The sub-section however goes on to state Nation pleading for sanity and protection to the that "the public generally may have access so far Sikhs. Nevertheless three days passed on with as the place can conveniently contain them . murder and loot leaving behind a horrendous toll What has been stated here is nothing new. It is of more than two thousand dead and countless implicit in the concept of a public trial. The property destroyed. It is a tragedy frightening public trial does not mean that every person shall even to think of. This has been referred to in the be allowed to attend the court. Nor the court room report (at 11 to 15) of Justice Ranganatha Misra shall be large enough to accommodate all Commission of Inquiry. These unprecedented The events and circumstances, in my judgment, would cul amply justify the decision of the High Court to case and situation. As Judge Cooley states direct that the trial of the case should take place Law in Tihar Jail. 647) R£:Question (iii): "It is also requisite that the trial be public. By this is not meant that every person who seeks 49. The question herein for consideration is permi to attend whether the trial held in Tihar Jail was devoid of criminal sufficient safeguards to constitute an open trial? charge nature of the evidence by which it is to be 50. As a preliminary to the consideration of this supported, the motives to attend the trial on question, it is necessary to understand the scope the part of portions of the community would of Sec. 327(1) of the Code. The section provides: be of the worst character, and where regard for public morals and public decency would re­ u Sec. 327. Court to be open: quire that at least the young be excluded from (1) The place in which any criminal court is hearing and witnessing the evidences of hu­ held for the purpose of inquiring into or trying man depravity which the trial must necessarily any offence shall be deemed to be an open The r Court, to which the public generally may have accused access, so far as the same can conveniently see he is fairly dealt with and not unjustly contain them: I condemned, and that the presence of inter­ ested spectators may keep his triers keenly Provided that the Presiding Judge or alive to a sense of their responsibility into the Magistrate may, if he thinks fit, order at any importance of their functions and the require- stage of any inquiry into, or triai of, any ment is fairly observed if, without partiality particular case, that the public generally, or of favouritism, a reasonable proportion of the any particular person, shall not have access, to public is suffered to attend, notwithstanding or be or remain in, the room or building used that those persons whose presence could be of by the Court." nc accused drawn prurient curiosity The main part of sub-sec.(l) embodies the excluded altogether." 71 guards against improbity. It keeps the judge 52. The proviso to sub-sec.(l) of sec. 327 specifi­ himself while trying under trial. 'The security cally provides power to the Presiding Judge to of securities is publicity.' But amongst histori­ impose necessary constraint on the public access ans the grave and enlightened verdict of Hal- • depending upon the nature of the case. It also lam, in which he ranks the publicity of judicial confers power on the Presiding Judge to remove proceedings even higher than the rights of any person from the court house. The public trial Parliament as a guarantee of public security, is is not a disorderly trial. It is an orderly trial. not likely to be forgotten: 'Civil liberty in this The Presiding Officer may, therefore, remove kingdom has two direct guarantees; the open any person from the Court premises if his administration of justice according to known conduct is undesirable. If exigencies of a situ­ laws truly interpreted, and fair constructions ation require, the person desiring to attend the of evidence; and the right of Parliament, with­ trial may be asked to obtain a pass from the out let or interruption, to inquire into, and authorised person. Such visitors may be even obtain redress of, public grievances. Of these, asked to disclose their names and sign registers. the first is by far the most indispensable; nor There may be also security checks. These and can the subjects of anv State be reckoned to other like restrictions will not impair the right of enjoy a real freedom, where this condition is the accused or that of the public. They are not found both in its judicial institutions and in essential to ensure fairness of the proceedings their constant exercise..." and safety to al! concerned. 54. In open dispensation of justice, the people 53. So much as regards the scope of public trial may see that the State is not misusing the State envisaged under sec. 327(1) of the code. There machinery like the Police, the Prosecutors and are yet other fundamental principles justifying the other public servants. The people may see that • public access to criminal trials: The crime is a the accused is fairly dealt with and not unjustly wTong done more to the society than to the indi­ condemned. There is yet another aspect. The vidual. It involves a serious invasion of rights and courts like other institutions also belong to liberties of some other person or persons. The people. They are as much human institutions as people are, therefore, entitled to know whether any other. The other instruments and institutions 7 the justice deliver) system is adequate or inade- of the State may survive by the power of the purse quate. Whether it responds appropriately to the or might of the sword. But not the Courts. The situation or it presents a pathetic picture. This is Courts have no such means or power. The Courts one aspect. The other aspect is still more funda- could survive only by the strength of public mental. When th^State representing the society confidence. The public confidence can be fos- * seeks to prosecute a person, the State must do it tered by exposing Courts more and more to public openly. As Lord Shaw said with most outspoken gaze. words (Scoot v. Scott: 1913 A.C. 417 at 477): * 55. There are numerous benefits accruing from "It is needless to quote authority on this topic the public access to criminal trials. Beth Horn- from legal, philosophical, or historical writers. buckle Fleming in his article "First Amendment It moves Bentham over and over again. 'In the Right of Access to Pretrial Proceeding in Criminal darkness of secrecy, sinister interest and evil in Cases" (Emory Law Journal, V.32(1983) P.618 to every shape have full swing. Only in propor­ 688) neatly recounts the benefits identified by the tion as publicity has place can any of the Supreme Court of the United States in some of checks applicable to judicial injustice operate. the leading decisions. He categorizes the benefits Where there is no publicity there is no justice.' as the "fairness" and "testimonial improvement" 'Publicity is the very soul of justice. It is the effects on the trial itself, and the "educative" and keenest spur to exertion and the surest of all "sunshine" effects beyond the trial. He then 72 proceeds to state: cular when they determine the outcome of subse- a Public access to a criminal trial helps to distrus ensure the fairness of the proceeding. The judicial system. Open proceedings, enhance presence of public and press encourages all the appearance of justice and thus help to participants to perform their duties maintain public confidence in the judicial conscientiously and discourages misconduct system. » and abuse of power by judges, prosecutors and other participants. Decisions based on parti­ With ality and bias are discouraged, thus protecting back to feguards the integrity ofthe trial process. Public access open trial in this case. First, let us have an idea helps to ensure that procedural rights are The respected and that justice is applied equally. Office Block ofthe Jail Staffwas used as the Court House. It is an independent building located at "Closely related to the fairness function is the some distance from the main Jail complex. In role of public access in assuring accurate fact between there is a court-yard. This court-yard has finding through the improvement of witness direct access from outside. A visitor after entering testimony. This occurs in three ways. First, the court-yard can straight go to the Court House, witnesses are discouraged from committing He need not get into the Jail complex. This is perjury by the presence of members of the evident from the sketch ofthe premises produced public who may be aware of the truth. Second, before us. It appears the person who visits the witnesses like other participants, may be Court House does not get any idea of the Jail encouraged to perform more conscientiously complex in which there are Jail Wards and Cells, by the presence of the public, thus improving From the sketch, it will be also seen that the the overall quality of testimony. Third, un- building comprises of a Court-hall, Bar room and known witnesses may be inducted to come chamber for the Judge. The Court hall can be said forward and testify if they learn of the to be of ordinary size. It has seating capacity for proceedings through publicity. Public access about fifty with some more space for those who to trials also plays a significant role in could afford to stand. The accused as undertrial educating the public about the criminal justice prisoners were lodged at Jail No. 1 inside the Jail process. Public awareness of the functioning complex. It was at a distance of about 1 km form of judicial proceedings is essential to in- the Court House. For trial purposes, the accused formed citizen debate and decision making were transported by van. In the Court hall, they about issues with significant effects beyond were provided with bullet proof enclosure, the outcome of the particular proceeding. Public debate about controversial topics,such 57. This is a rough picture of the Court House as, exclusionary evidentiary rules, is enhanced where the accused had their trial. For security by public observation of the effect of such s the public access to trial was regulated. rules on actual trials. Attendance at criminal Those who desired to witness the trial were trials is a key means by which the public can requir :d to intimate the Court in advance. The learn about the activities of police, trial Judge used to accord permission to such prosecutors, attorneys and other public ser- persons subject to usual security checks. vants, and thus make educated decisions about Before commencement ofthe trial ofthe case the how to remedy abuses within the criminal representatives of the Press and News Agencies, justice system. national and international, approached the trial proceed Finally, public access to trials serves an The representatives ofBBCLondo important "sunshine" function. Closed pro- New York Times Associated ceedings, especially when they are the onlj some of them. The trial Judge allowed their re- i J

• 73 1 quest by his order dated May 15, 1985 in the following terms.: xxxx xxxx xxxx

< "I do feel that in the best traditions of the trial, In view of the prevailing situation and peculiar the press is permitted to cover the proceedings circumstances the Hon'ble High Court had of the trial in the case. In view thereof I think vide its order chosen the venue of trial. The * it just and proper to allow the press to cover only proper venue for a trial like this is jail. the proceedings. Without exception the news Even this learned Court would have opted for agencies would have a right to cover the the same in view of the security risk, nature of proceedings through a representative. So far as the crime, persons involved and keeping in individual papers are concerned, efforts would view the other allied circumstances of the case. • be made to accommodate as many of them as It was also stated, "that the case as is and | security and space would permit. In view product of misguided fundamentalist and thereof, it is directed that a letter be addressed terrorism. In the prevailing atmosphere in the to the Supdt. Jail. Tihar with the request that country, the accused as well as the witnesses are the press representatives may be allowed to in grave danger of outsicteaetfrariSCs* attacks enter and have access to the Court room where and this has to be safeguarded. Transport of the proceedings would be held in the jail. It accused persons at set times from and to the jail would be open to the supdt. Jail to put such is fraught with danger." restrictions as regards security check-up or production of accredition cards or identity 59. The application of the accused and the objec­ cards as he considers necessary." tions thereof were considered and disposed of by order dated June 5, 1984. The relevant portion of 58. On May 20, 1985, Kehar Singh(A-3) filed an the order reads: application before the trial court contending that I the trial should be held in open Court at Patiala " There can be no dispute that public has a House, New Delhi and not in Central Jail, Tihar. right to know but it is precisely for this purpose that National .and International Press I The State filed an objection contending inter- • alia: has been allowed to be present in the Court during the entire trial. The Press is the most "That regulated entry has been made for the powerful watch-dog of the public interest and, safety of the accused and for the general safety • certainly, we in India have not only free but of the others concerned with the trial. Every also a very responsible press and interest of specific request of the accused and others to general public are quite safe in their hands. It | attend the trial has been allowed by the Court. is not merely Indian press representatives and The entry of the Court room is merely regu­ the news agencies which have been allowed to lated in the interest of safety. A blanket charter come to attend the trial but the International i to permit every person known or unknown or agency like BBC, London times, New York whose antecedents are not proper can very Times and Associated Press have also been much defeat the ends of justice. Not only it has allowed and admitted and are, in fact, present. to be ensured that a fair trial is given, but it has also to be kept in view that the prevailing XXX XXXX XXX peculiar situation, the security is not jeopard­ It can be categorically declared and ized at any cost. The members and the placed on record by this Court that all press relatives of the accused have been permitted representatives and news agencies whosoever by the Court to be present at the time of have sought permission have been without hearing. It was, therefore, not a closed or a exception granted necessary permission by this secret trial. Court. I am sure right of public to know about 74

the trial has been more than assured by the accused, it is argued criminal presence of the Press in the Court. The sugges­ tion of learned defence counsel that presence fundamental right guaran of Press is not sufficient guarantee is not a fair Art.190) (a) of the Constitution and i comment on a free, fair and responsible Press they need not be under the mercy ot the court, of India. It would be proper to mention here is also argued that there shall not be any dtfouni- that to ensure fair trial and judicious admini- nation in the matter of public access to jucucial stration of justice the presence of defence proceedings and first come first served snouJd counsel, the Press and the relations of the be the principle no matter whether one is a press accused persons has been allowed " person or an ordinary citizen. The contentions though attractive need not be considered since 60. With reference to the people in general, it was no member of the public or press is before us pertinently observed: consti case.Th "Nonetheless, space permitting, this Court Court has frequently emphasized that the deci- would not be averse or disinclined to allow sjon 0f tfce Court should be confi public men also to attend the proceedings narrow points directlv raised.before it. There subject to usual security check-up." should not be any exposition of the law at large case. There 61. The learned trial Judge did not make the should not be even obitei observations aforesaid observation as an empty formality, to questions not direct case True to his words, he did permit access to the These principles are mo particu members of the public also. He permitted even when we are dealing with constitutional ques- the Law Students in batches to witness the trial, tions. I should not transgress these limits. This we could see from the extract of the visitors' However, the decisions referred to us may be book maintained by the authorities. There is briefly touched upon here. W I hardly any instance brought to our attention In Nourish Shridhar Mirajkar v. State of where a person who sought permission was de- 63. nied access to the Court. The High Court has also Maharashtra (1963 (3) SCR 744), this Court had considered this aspect carefully. The High Court an occasion to consider the validity of a judicial has observed that the "trial Judge has given verdict of the High Court ot Bombay made under access to the place of trial for all members of the the. inherent powers. There the learned Judge Public who may be. minded to attend the same made an oral order directing the Press not to save for certain reasonable restriction imposed in public interest." This statement has not been course of proceedings. That order was chaiienged shown to be incorrect. The fact also remains that °y a journalist and others before this Court on the the accused were represented by leading mem­ guarantee bers of the Bar. Some of the close relatives of the Art accused were allowed to be present at the trial. CJ All press representatives and news agencies whoever sought permission have been allowed to Speakmg for tne m^01'^ view> sa,d (at 76°-6l): cover the day to day Court proceedings. The Trial "The argument that the impugned order af­ Judge in his order dated June 5,1985 has specifi­ fects the fundamental rights of the petitioners cally stated this. There can, therefore, be no under Art. 19(1), is based on a complete doubt or dispute as to the adequacy of safeguards misconception about the true nature and char­ provided to constitute an open trial. Indeed, the acter of judicial process and of judicial steps taken by learned trial Judge are more than ions adequate to ensure fair trial as well as public trial. igularly *r M . 75 to assume that a judicial decision pronounced Court considered whether the public and press by a Judge of competent jurisdiction in or in have a constitutional right of access 10 criminal relation to a matter brought before him for trials under the first amendment. The Court held adjudication can effect the fundamental rights that the first and fourteenth amendments guar- of the citizens under Art. 19(1). What the antee the public and press the right to attend judicialdecisionpurportstodois to decide the criminal trials. But the Richmond Newspapers controversy between the parties brought be- case still left the question as to whether the press fore the Court and nothing more. If this basic and public could be excluded from trial when it . and essential aspect of the judicial process is may be in the best interest of fairness to make borne in mind, it would be plain that the such an exclusion. That question was considered judicial verdict pronounced by Court in or in in the Globe Newspapers v. Superior Court 457 relation to a matter brought before it for its U.S. 596 (1982) (73 L.Ed.248). There the trial decisions cannot be said to affect the funda- Judge excluded the press and public from the mental rights of citizens under Art. 19(1)." court room pursuant to a Massachusetts statute making closure mandatory in cases involving 64. There is trilogy of decisions of the Supreme minor victims of sex crimes, ^t Court consid. Court of Umted States dealing with the constitu- ered the constitutionality of the Massachusetts tional right of the public access to criminal trials: statute and held that lhe statute violated the first 65. In Gannet Cc. v. De Pasquale (443 U.S. 368 amendment because of its mandatory nature. But itwas held that it would be open to the Court in any (1979), the defendants were charged with mur­ given case to deny public access to criminal trials der and requested closure of the hearing of their on the ground of state's interest. Brennan, J., v/ho motion to suppress allegedly involuntar yJ confes- , f . , ?A rj- . delivered the opinion of the Court said (at 258- sions and physical evidence. The prosecution C59)n\ : and the trial Judge agreed and said that closure was necessary. The public and the press were "We agree with appellee that the first denied access to avoid adverse publicity. The interest safeguarding the physical and psycho­ closure was also to ensure that the defendants' logical well-being of a minor is a compelling right to a fair trial was not jeopardized. The one. But as compelling as that interest is, it Supreme Court addressed to the question does not justify a mandatory closure rule, for whether the public has an independent consti- it is clear that the circumstances of the particu­ tutional right of access to a pretrial judicial lar case may determine on a case by case basis proceedings, even though the defendant, the whether closure is necessary to protect the prosecution, and the trial Judge had agreed that welfare of a minor victim. Among the factors closure was necessary. Explaining that the right to to be weighed are the minor victim's age, a public trial is personal to the defendant, the psychological maturity and understanding, the Court held that the public and press do not have nature of the crime the desires of the victims, an independent right of access to pretrial pro­ and the interests of parents and relatives. ceedings under the Sixth Amendment. xx XX XX XX XX 66. Although the Court in Gannett held that no right of public access emanated from the sixth Such an approach ensures that the constitu- Amendment it did not decide whether a*constitu- tional right of the press and public to gain * 'tional right of public access is guaranteed by the access to criminal trials will hot be restricted first amendment. This issue was discussed in except where necessary to protect the State's Richmond Newspaper Inc. vs. Virginia (448 US interest. >* 555 (1980). This case involved the closure of the court-room during the fourth attempt to try the 67- li wil1 be c,ear from these decisions that the accused for murder. The United States Supreme mandatory exclusion of the press and public to

• 76 criminal trials in all cases violates the First procedures and measures as prescribed, or as Amendment to the United States Constitution. operated in practice in attending to any providing But if such exclusion is made by the trial Judge in medical attention to the late Prime Minister after the commission of the crime; and whether there the best interest of fairness to make that exclu- fc sion, it would not violate that constitutional was any lapse or dereliction of duty in this regard rights. on the part of the individuals responsible for providing such medical attention; 68. It is interesting to note that the view taken by the American Supreme Court in the last case, (e) whether any person or persons or runs parallel to the principles laid down by this agencies were responsible for conceiving, pre^ Court in Naresh Shridhar Mirajkar case. paring and planning the assassination and whether there was any conspiracy in this behalf, Re: Question (iv): and if so, all its ramifications.

69. There remains, however, the last question 72. The Commission was also asked to make formulated earlier in this judgment, namely, recommendations as to the corrective remedies whether the trial Court was justified in refusing to and measures that need to be taken for the future call for the statements of witnesses recorded by with respect to the matters specified in clause (d) the Thakkar Commission? above. msup^d^ i .70. For a proper consideration of the question, it 73. On December 5, 1984, the Commission will be necessary to have a brief outline of certain framed regulations under sec.8 of the Act in facts. regard to the procedure for enquiry. Regulation 8 framed thereon reads: 'in view of the sensitive 71. Soon after the assassination of Mrs. Indira nature of the enquiry, the proceedings will be in - Gandhi, the Government of India, by Notifica­ camera unless the Commission directs other- tion dated November 20, 1984, constituted a wise." Accordingly, the Commission had its Commission under the Commission of Inquiry sittings in camera. On November 19, 1985, the Act, 1952 (the "Act"). The Commission was Commission submitted an interim report to the presided over by Mr. Justice M.P. Thakkar, the sitting Judge of this Court. The Commission was Government followed by the final report on February 27, 1986. asked to make an enquiry with respect to the matters: > s * 74. In the normal course, the Government ought to have placed the report of the Commission (a) the sequence of events leading, and all the facts relating to, the assassination of the late under sec.3(4) of the Act before the House of the Prime Minister; People within six months of the submission of the report. But the Government did not do that. The (b) whether the crime could have been steps were taken to amend the Commissions of averted and whether there were any lapses of Inquiry Act. On May 14, 1986, the President of dereliction of duty in this regard on the part of any India promulgated Ordinance No.6 of 1986 called of the commission of the crime and other indi- the Commissions of Inquiry (Amendment) Ordi­ viduals responsible for the security of the late nance 1986 by which sub-sections (5) and (6) were? Prime Minister; introduced to sec.3 as follows:

(c) the deficiencies, if any, in the security "(5) The provisions of sub-sec. (4) shall system and arrangements as prescribed or as not apply if the appropriate Government is operated in practice which might have facilitated satisfied that in the interests of the sover-r the commission of the crime; ' eignty and integrity of India, the security of 0 the State friendly relations with foreign State (d) the deficiencies, if any, in the or in the public interest, it is not expedient to 77 lay before the House of the people or, as the 1986 was also got approved by the House of the case may be, the Legislative Assembly of the People as required under sub-sec. (6) of sec. 3. State, the report, or any part thereof, of the Commission on the Inquiry made by the 77. We may now revert to the steps taken by the Commission under sub-sec.(1) and issues a accused before the trial court. After the prosecu­ notification to that effect in the Official Ga­ tion examined some of the witnesses, accused zette. No.l moved the Court with an application dated August 5, 1985 praying for summoning true copies (6) Every notification issued under sub- of statements of all persons recorded by the sec.(5) shall be laid before the House of the Thakkar Commission and who happened to be people or, as the case may be, the Legislative the prosecution witnesses in the case. It was stated Assembly of the State, if it is sitting as soon in the application that the statements should be as may be after the issue of the notification, summoned for the purpose of sec. 145 of the and if it is not sitting, within seven days of its Evidence Act. The trial court rejected that appli­ reassembly and the appropriate Government cation following the decision of this Court in shall seek the approval of the House of the Ramakrishna Dalmia v. Justice Tandolkar (1959 People or, as the case may be, the Legislative SCR 279). The trial court said that the statements Assembly of the State to the notification by a recorded by the Commission are inadmissible in resolution moved within a period of fifteen evidence in any subsequent proceedings and days beginning with the day on which the cannot therefore be used for the purpose of notification is so laid before the House of the contradicting the same witnesses under sec. 145 People or as the case may be, the Legislative of the Evidence Act. Assembly of the State makes any modification in the notification or directs that the notifica­ 78. Before the High Court, the accused made two tion should cease to have effect, the notifica­ applications under sec. 391 of the Criminal pro- tion shall thereafter have effect, as the case cedure Code. On July 16,1986 accused nos. 2 and may be." 3 made an application for additional evidence. Accused No.l also made a similar application 75. On May 15, 1986, the Central Government dated July 17, 1986. They wanted the depositions issued a notification under sub-sec.(5) of sec.3 recorded and the documentary evidence re­ stating: ceived by the Thakkar Commission as addi­

• tional evidence in the case. They also wanted the "The Central Government, being satis­ High Court to summon the two reports of the fied thauit is not expedient in the interest of Thakkar Commission. the security of the State and in the public interest to lay before the House of the People 79. The High Court rejected both the the report submitted to the Government on the applications in the course of the judgment which 19th November 1985, and the 27th February, is now under appeal. The High Court has stated 1986, by Justice M.P. Thakkar, a sitting Judge that it is not proper to compel production of the of the Supreme Court of India appointed proceedings or the report of the Commission in under the notification of the Government of . view of the privilege of non-disclosure provided by India in the Ministry of Home affairs the Act of Parliament. The High Court also de­ No.S.O.S67(B) dated the 20th November, pended upon the decision of this Court in 1984, hereby notifies that the said reports shall Dalmia's case. The decision therein was held to not be laid before the House of the People." be an authoritative pronouncement on the scope of sec. 6 of the Act and as to the utilisation of 76. On August 20, 1986, Ordinance No. (6) was statement made by any person before the Com­ replaced by the Commission of Inquiry (Amend­ mission. The High Court held that the evidence ment) Act, 1986 (Act 36 of 1986) with retrospec­ before the Commission is wholly inadmissible in tive effect. The said notification dated May 15, 78 any other Civil or Criminal proceedings except for prosecuting the person for perjury. gument in the above case did not traverse the scope of sec. 6 of the Act, it is now 80. The principal submission before us is that necessary to call attention to the same at length. the High Court has misconstrued the scope of Before examining the matt it may not be sec. 6 of the Act and misunderstood the observa- inappropriate to state that accused in tions in Dalmia's case. It is also contended that the criminal trials should be given equal opportunity observation in Dalmia's case. to lay evidence fully, freely and fairly before the The Government as a binding precedent since this Court was not accused will lay bare the evidence in its posses- called upon therein to examine the true scope of sion. summoning any sec. 6. specific document or thing for preparing his case, oi T . . • . . it should normally be allowed by the Court if there 81 It is true that the scope of section as such isn0, ,ban But <^he demand", as BrennaiU., n 0 U ^l ?iJ ^ P for consideration ut Dalmia s of the Supreme Coim of the United States> ob_ CJ., while examining served, "must be for production of specific th, e validit. yJ of the Act and a notificatio. n issued document, " .s and, shoulu ,d . _no.t .%™«,%proposMe omany# K™QbroaHd o^rr thereunder made some observations as to blind fishing expedition." (Clinton E. Jencks v. matters of principle (294-295): United States,353 U.S.657 = lL.Ed 1103 at 1111). "The whole purpose of setting up of a Ameer Ali, J. In Nizam of Hyderabad v. A.M. Commission of Inquiry consisting of experts Jacob riLR XIX Cal. 52 at 641 made similar will be frustrated and the elaborate process of observations: inquiry will be deprived of its utility if the ...he cannot call for anything and every­ opinion and the advice of the expert body as to thing from anybody and everybody. The thing the measures the situation disclosed calls for called for must have some relation to, or cannot be placed before the Government for connection with : the subject-matter of the consideration notwithstanding that doing so investigation or enquiry, or throw some light cannot be to the prejudice of anybody because on the proceedings, or supply some link in the it has no force of its own. In our view, the chain of evidence." recommendations of a Commission of Inquiry

are of great importance to the Government in 83# These principles are broadly incorporated for order to enable it to make up its mind as to what the gujdance of Courts under Section 91 and 233 legislative or administrative measures should 0f t^e Q0fe be adopted, to eradicate the evil found or to implement the beneficial objects it hasin view. 84. Let us turn to consider in detail the language From this point of view, there can be no of the Critical section. Section 6 provides: objection even to the Commission of Inquiry recommending the imposition of some form of "No statement made by a person in the punishment which will, in its opinion, be Commis sufficiently deterrent to delinquents in future. sionshall subject him to, orbeused against him But seeing that the Commission of Inquiry has *n anY c*v*l or criminal proceedings except a no judicial powers and its report will purely be prosecution for giving false evidence by such recommendatory and not etttclxvt proprio vig- statement ore and the statement made by any person before xx the Commission of Inquiry is under sec. 6 of the XX XX XX XX XX XX Act wholly inadmissible in evidence in any oc nicc*M«n« *\>* e^;~« •* -nu i future*,,.,« proceedings,«™w,w civil„•„;#„,™,,w or criminal."» »5. Dissecting the section, it will be clear that the Commis (Emphasis supplied) sion, in the first place shall not be the basis to

• • 79 • proceed against him. Secondly, it shall not be under section 145 of the Evidence Act, there are "used against him* in any subsequent civil or otherprovisionsby which the previous statement criminal proceedings except for the purpose set could be looked into for productive use without out in the section itself. The single exception confronting the same to the witness. Reference is provided thereunder is a prosecution for giving made to the first part of Section 145, sub-section false evidence by such statement. (1) and(2) of Section 146 as well as Sections 157 and 159 of the Evidence Act. It is also said that 86. The term "used against" has given rise to the term "used against" in Section 6 was not controversy. The Bombay High Court in (i) intended to be an absolute bar for making use of SohanLal\. State [AIR 1965 Boml] and (ii) State such statement in subsequent proceedings. The ofMaharashtrav. Ibraixim MofuL [1978 Criminal learned Additional Solicitor General, on the LJ 1157] has regarded the observations in other hand, states that Section 6 was intended Dalmia's case as an obiter. It was held: to be a complete protection to persons against the use or utility of their statements in any "Whether a particular statement made by proceedings except in case of prosecution for a witness before the Commission is used perjury. Such protection is necessary for persons "against him" will depend on the prejudice or to come and depose before the Commission with­ detriment caused or likely to cause to the out any hesitation. Any dilution of that protec- person in civil or criminal proceedings or oth­ tion, it is said, would defeat the purpose of the Act erwise. It must, therefore, necessarily depend itself. on the facts and circumstances relating to the use or intended use. Whether any particular 89. Before I come to consider the arguments put prejudice or detriment can be said to result forward by each side, I venture to refer to some . from the use of the statements will also I general observations byway of approach to the depend on facts. Mere cross-examination questions of'construction of statutes. In the past, und.i s.i45 can at the most expose his state­ the Judges and lawyers spoke of a'golden rule'by ment. That does not render the use of the which statutes were to be interpreted according to statement "against him" in law because law grammatical and ordinary sense of the word. requires him to tell the truth, the whole truth They took the grammatical or literal meaning and nothing but the truth before the Commis­ unmindful of the consequences. Even if such a sion also and implies that he will be prosecuted meaning gave rise to unjust results which for perjury if he tells lies." [Maharashtra v. legislature never intended, the grammatical Ibrahim Mohd. 1978 Cr. Law Journal 1157 at meaning alone was kept to prevail. They said f 1160]." that it would be for thelegisla ure to amend the Act and not for the Court to intervene by its 87. This line of reasoning also found favour with innovation. the Assam High Court in State of Assam v. 4 Suprbhat Bhadra [1982 Crl. U1672]. But Madhya 90. During the last several years, the 'golden rule' Pradeshh'%\\Court in Puhupram & Ors. v. State has been given a go bye. We now look for the ofM.P. [1968 MP U 629] has taken a contrary 'intention* of the legislatu re or the 'purpose* of no view. That High Court said that the language of statute. First, we examine the words of the statute. section 6 is plain enough to show that the- If the words are precise and cover the situation in statement made by a person before the Commis­ hand, we do not go further. We expound those sion of Inquiry cannot be used against him for the words in the natural and ordinary sense of the purpose of cross-examination. words. But, if the words are ambiguous, uncertain or any doubt arises as to the terms 88. It is urged that even if the words "used employed, we deem it as our paramount duty to against" means preventing the use of the state­ put upon the language of the legislature rational ment for the purpose of contradiction as required meaning. We then examine every word, every so section and every provision. We examine the Act Commissio utilise rvi as awhole. We examine the necessity which gave officer or investigating agency for the purpose of rise to the Act. We look at the mischiefs which the conducting any investigation pertaining to inquiry legislature intended to redress- We look at the entrusted to the Commission. Section 6 confers whole situation and not just one-to-one relation, upon persons giving evidence before the Com- We will not consider any provision but of the mission protection from prosecution except for framework of the statute. We will not view the The other section are not important provisions as abstract principles separated from our purpose except Section 8. Section 8 provides the motive force behind. We will consider the Commission. The provisions in the circumstances to which they Commission is given power to regulate its own owe their origin. We will consider the provisions and to decide whether to sit in to ensure coherence and consistency within the public or in private. law as a whole and to avoid undesirable conse­ quences. 94. The Statement of Objects and Reasons of the 91. Let me here add a word of caution. This original Act reads: adventure, no doubt, enlarges our discretion as to interpretation. But it does not imply power to us "It is felt that there should be a general law to substitute our own notions of legislative inten­ authorising Government to appoint an inquir­ tion. It implies only a power of choice where ing authority on any matter of public impor­ differing constructions are possible and different tance, whenever considered necessary, or meanings are available. when a demand to that effect is made by the legislature and that such law should enable to * 92. For this purpose, we call in external and inquiring authority to exercise certain specific internal aids: powers including the powers to summon wit- * nesses, to take evidence on oath, and to compel External aids are: the Statement of Objects persons to furnish information. The bill is and Reasons when the Bill was presented to designed to achieve this object." Parliament, the reports of the Committee, if any, preceded the Bill, legislative history, other stat- 95. It will be clear from these provisions that the utes in pari material and legislation in other Act was intended to cover matters of public States which pertain to the same subject matter, importance. In matters of public importance it persons, things or relations. may be necessary for the Government to fix the responsibility on individuals or to kill harmful Internal aids are: Preamble, Scheme, rumours. The ordinary law of the land may not fit enacting parts of the statutes, rules of languages in such cases apart from it is time consuming> and other provisions in the statutes. The Commission 93. The Act may now be analysed. The Act is a gulate its own procedure and short one consisting of 12 Sections. Section 3 decide whether to sit in camera or in public A provides power to he appropriate Government to Commission, appointed under the Act does not appoint a Commission of Inquiry for the purposes There of making an inquiry into any definite matter of There is no lis. The Commission public importance. Section in 4 confers upon a xept for a limited purpose. The Commission of Inquiry certain powers of a Civil ie Commission is inquisitorial Court (for example, summoning and enforcing satorial. The Commission more the attendance of witnesses and examining them > give assurance to persons giving onoath, etc.) Sections empowers the appropriate will not Government to confer some additional powers on be used in any subsequent proceedings except for a rnmmKQinCommissionn nflnnnirof Inquiryv . .vrtinSectionn 5(aVaKnnthnrKP) authorisecs r & * 1UI 81 •perjury-. Without such an assurance, the persons I may not come forward to give statements. If "9 A witness examined under this Act ' persons have got lurking fear that their shall not be excused from answering any r statements given before the Comm are question put to him on the ground of any likely to be used against them or utilised for privilege or on the ground that the answer -a. A — k — _ productive use on them in any other proceeding, thereto may criminate or tend to criminate they may be reluctant to expose ' themselves himself. Provided that no evidence taken under before the Commission. Then the Commission this Act shall be admissible against any person in would not be able to perform its task. The any civil or crim inalproceeding except in the case Commission would not be able to reach the of a witness accused of having given false gests of truth from the obscure horizon. The evidence in any inquiry under this Act..." purpose for which the Commission is canstituted may be defeated. (Emphasis supplied)

97. The Court should avoid such construction to 100' Section J(3> of the Tribunals of Incluiry Section 6 which may stultify the purpose of the (Evldence) Act, 1921, provides: Act. Section 6 must on the other hand, receive I s ^sufcina "A witness before'any such tribunafriDu l shall liberal construction so that the person deposing be enti nd privi- before the Commission may get complete ntitled to the same immunities a leges as if he were a witness before the High immunity except in a case of prosecution for Court or the Court of Session." perjury. That is possible if the word "against" I used in sec. 6 is properly understood. The ioi. Section 9 of the Special Commission Act, meaninggiven in Black's Law Dictionary supports 1888 protects the witness inevery respect except such construction (at 57): in a prosecution for giving false evidence by such statement. It provides that the evidence given by ''Against Adverse contrar °' him shall be inadmissible in any civil or criminal y Sometimes meaning "Upon", proceedings. Section 1(3) of ^ Tribunals of which is almost, synonymous with word* on Inquiry (Evidence) Act, 1921 provides only a 98. Apart from that, it may also be noted that limited or partial immunity to a witness. It is Section 6 contains only one exception. That is similar to the immunity afforded to a witness prosecution for giving false evidence by such before the High Court or the Court of Session.

statement. When the Legislature has expressly mln 1%6> the Royal Commission on Tribunals provided a singular exception to the provisions, of Inquiry was constituted under the Chairman- it has to be normally understood that other shJp of the Rt Hon ^ Justice Salmon The exceptions are ruled out. Commission was appointed to review the working -99. The of the Tribunals of Inquiry (Evidence) Act, 1921, from the report of the commission and to consider whether it should be retained or Tribunals of Inquiry (1966). Before referring to rePlaced * som* othe' Provision- The Commis- will sion was also authorised to suggest any changes in relevant provisions of the English statutes which the Act as are necessary or desirable; and to make are not materially dissimilar to our Act. There are recommendations. The Royal Commission in its two English statutes which maybe looked into: (i) report at para 63 recommended: The Special Commission Act, 1888; and (ii) The (vii): Further Immunity: Tribunals of Inquiry (Evidence) Act, 1921. Sec- • *— - - * - - *-v ^ *-» tion 9 of the Commission 63. "Section 1(3) of the Act of 1921 provides: provides that a witness before any Tribunal shall be entitled to the same immunities and • I 82

I

privileges as if he were a witness before the proceedings except in a prosecution for perjury t The HighCourtortheCourtofSession. Thismeans bygivingfalse that he cannot be sued for anything he says in extension of immunity evidence e.g. if he says "A is a liar. His Roya Commission evidence is untrue." A cannot sue him for Act, with defamation. It does not mean however that the legislations of Canada, Australia and India. his answer as a witness cannot be used in The legislation i the Commission of f evidence against him in any subsequent civil Inquiry Act, 195^ with or criminal proceedings. We consider the is apparent that the Royal Commission was of witness's immunity should be extended so that opinion that sec.6 of our Act provides complete neither his evidence before the Tribunal, nor protection to witnesses in terms of sec. 9 of the his statement to the Treasury Solicitor, nor any Commission documents he is required to produce to the statement given before a Commission shall not be Tribunal, shall be used against him in any admissible against the person in any subsequent subsequent civil or criminal proceedings ex- civil or criminal proceeding save for perjury. cept in criminal proceedings in which he is charged with having given false evidence be­ 104. There fore the Tribunal or conspired with or pro- and indeed cured others to do so. This extension of the that is the proper construction to be attributed to witness's immunity would bring the law in this language of sec.6 of the Act. I respectfully country into line in this respect with similar affirm and re-emphasise that view, provision in the legislation of Canada, Austra- I 105. It is needless to state that the said decisions lia and India and indeed with sec. 9 of the of the High Courts of Bombay and Assam are Special Commission Act, 1888. It would also, in our view, be of considerable assistance in incorrect and theystand overruled- obtaining relevant evidence, for persons may 1Q6 Havi reached ^ conclusiorl) it is strictl be chary of coming forward for fear opposing unnec to fall back on the other contention

themselves to the risk of prosecution or an . raised by counsel for the appellants, action in the civil courts. Moreover, the

suggested extension of the immunity would 107. Let us now move on to the merits of the case make it difficult for a witness to refuse to against each of the accused. But, before proceed- answer a question on the ground that his ingtoconsiderationofthemerits.it will be appro- answer might tend to incriminate him: Thus pdateto have regard to principles and precedents not only would the witness be afforded a fur- followed by this Court while dealing with an ther measure of protection but the Tribunal appeal under Art. 136 of the Constitution'. There would also be helped in arriving at the truth." is a string of decisions laying down those prin- im u. r^,oi n~ • • • ;, ciP,es riSnt from 195°-InPriam Singh v. The State 103. The Royal Commission appears to have /AiDio^crum c .-.,. , * , ;~!" •u~,„ ui • J .u •• • (AIR 1950 SC 169), Fazal All, J., said (at 170V nitthoroughly to witnessey examines ind th thee legislationprovisions aosf toCanada immu-, ' , ^, »«u \«i i iu/, Australia and India and sec. 9 of the special "It -would be opposed to all principles and precedents if we were to constitute our­ Commission Act, 1888. The Commission has selves into a third Court of fact and, after stated that the immunity provided to witnesses reweighing the evidence, come to a conclusion under sec.l(3) of the Act, 1921 is insufficient for different from that arrived at by the trial Judge the purpose of advancing the object of the Act. It and the High Court." should be extended so that the statement of a witness before the Tribunal shall not be used I >fAj against him in any subsequent civil or criminal Mahaian, CJ

1 83 the usual course, he was asked to go to the "Unless it is shown that exceptional and security police lines. At about 3 a.m. on November special circumstances exist that substantial 1, 1984, he was awakened from his sleep and his and grave injustice has been done and the i house was searched by SI, Mahipal Singh (PW casein question presents features of sufficient 50), Constable Hari Chand (PW 17) and Inspector gravity to warrant a review of the decision Shamshir Singh. Nothing except a printed book appealed against, this Court does not exercise on Sant Bhindrawale (Ex.PW 17/A) was recov­ its overriding powersunder Art. 136( i) of the ered. At about 4 a.m., he was taken to Yamuna Constitution and the circumstance that be­ Velodrome. He was kept there till late in the cause the appeal has been admitted by special evening when he was released from, what leave does not entitled the appellant to open Kochar (Pw 73) says, *de facto custody'. On out the whole case and contest all the findings December 3, 1984, he was said to have been of fact and raise every point which could be arrested at Najafgarh bus-stand. On December raised in the High Court. Even at the final 4, 1984, he was produced before the Magistrate, hearing only those points can be urged which who remanded him to police custody. Thereafter, are fit to be urged at the preliminary stage he expressed his desire to make a confession. But when the leave to appeal is asked for." when produced before the Magistrate, he refused to make a statement - confessional or otherwise. 109. More recently, in Bhoginohai Hirjibhai v. He was tried along with the other accused for State of Gujarat AIR 1983 SC 753) Thakkar, J., having entered into a criminal conspiracy to recounted (at 755): l commit the murder of the Prime Minister, Mrs. "A concurrent finding of fact cannot be Indira Gandhi. He was convicted under sec. 302 * reopened in an appeal, unless it is established: read with sec. 120-B IPC and sentenced to death. v first that the finding is based on no evidence or; 112. The charge-sheet contains the following second, that the finding is perverse, it being accusations against Balbir Singh: such a? .- reasonable person could have arrived at even if the evidence was taken at its 113. That Balbir Singh, like other accused, had face value or thirdly, the finding is based and expressed his resentment openly, holding Smt built on inadmissible evidence, which evi­ Indira Gandhi responsible for the "Blue Star dence if excluded from vision, would negate Operation". He was planning to commit the the prosecution case or substantially discredit murder of Smt. Indira Gandhi. He discussed his or impair it or; fourthly, some vita! piece of plans with Beant Singh (deceased), who had evidence which would tilt the balance in similar plans to commit the murder. He also favour of the convict has been overlooked, shared his intention and prompted accused Sat- disregarded or wrongly discarded." want Singh to commit the murder of Smt. Indira Gandhi and finally discussed the matter with him 110. Bearing in mind these principles, let me take on October 30, 1984. up the case of Balbir Singh (A-2) first for consid­ eration: 114. In the first week of September 1984, a falcon (Baaj) happened to sit on a tree near the main BA LBIR SINGH: Reception of the Prime Minister's house at about 1.30 pm. Balbir Singh spotted the falcon. He rill. He was an officer of the Delhi Police in the called Beant Singh there. Both of them agreed cadre of Sub-Inspectors. He was posted on duty at that it had brought a message of the Tenth Guru the PM's residence. He was not on duty in the ofthesikhsand they should do something by way morning of October 31, 1984. His duty was to of revenge of the "Blue Star Operation". commence in the evening on that day at the in- Thereafter, they performed Wrdas' then and gate of Akbar Road. When reported for duty, in there. 84

as it is relevant, provides: 115. These accusations are sought to be estab- lished by the testimony of SI, Madan Lai Sharma "107. A person abets the doing of a thing, (PW 13), Constable Satish Chander Singh (PW 52), SI, Amarjit Singh (PW 44) and the Firstly confession of Satwant Singh (Ex.PW 11/C). The Secondly - Engages with one Or more other c prosecution also strongly rely upon a document persons described as "memorandum of events" (Ex.PW omission 26/B) said to have been recovered upon the arrest ^p %^ * — takes place in pursuance of tliat conspiracy, of Balbir Singh on December 3, 1984. His leave » applications (Ex. PW 26/E-1 to E-5) and his post and in order to the doing of that thing; or crime conduct as to absconding are also relied >> ft Thirdly upon. Section 109 provides: 116. The case of Balbir Singh is that the document Ex.PW 26/B was not recovered from Whoever abets his possession as made out by the prosecution. His act abetted is committed in consequence of the arrest at Najafgarh bus-stand was a make believe abetment and no express provision is made by arrangement. He was not arrested there and this Code for the punishment of such indeed he could not have been arrested, since he abetment, be punished with the punishment was all aJfti[iftBBC|e«police.custody right from the provided for the offence." daywhenhewastaiken to Yamuna Velodrome on November 1,1984. Hewas not absconding and the 119. Criminal conspiracy is defined under sec. question of absconding did notarise when he was 120-A: not released at all. No question was put to him under sec. 313 examination that he had ab­ "120-A. When two or more person agree to sconded. It is argued that the conclusions of the do, or cause to be done High Court on all these matters are apparently (1) an illegal act, or unsustainable. 117. Before examining these contentions, it will (2) an act, which is not illegal by illegal be better to dispose of the point common to this means, such agreement is designated a crimi­ accused and Kehar Singh (A-3) relating to the nal conspiracy; validity of sentence of death awarded to them. xx XX XX XX XX 118. It is urged that there was no charge against 120. Punishment for criminal conspiracy is pro­ the accused under sec. 109 of IPC and without vided under sec. 120-B: such a charge, they are liable to be sentenced only for the offence of abetment and not for the 0 "120-B(!) Whoever is a party to a criminal murder. Reliance is placed on the provisions of i conspiracy to commit an offence punishable sec. 120-B IPC which provides, inter alia, that a with death, imprisonment for life or rigorous, party to a criminal conspiracy shall be punished imprisonment for a term of two years or in the same manner as if he had abetted such upwards, shall, where no express provision is offence. The contention, in our opinion, is really made in this Code for the punishment of such ill-founded.' It overlooks the vital difference conspiracy, be punished in the same manner as between the two crimes; (i)abetment in any if he had abetted such offence.. conspiracy, (ii) criminal conspiracy. The former is defined under the second clause of sec. 107 and (2) xx XX XX xx'\ the latter is under sec. 120-A. Section 107, so far 85 offence of criminal conspiracy it is punishable 121. The concept of criminal conspiracy will be under s. 120-B." dealt with in detail a little later. For the present, it may be sufficient to state that the gist of the 122. This takes me back to the other contentions offence of criminal conspiracy created under specifically urged on behalf of Balbir Singh. Of seel20-A is a bare agreement to commit an the evidence relied upon by the prosecution, the offence. It has been made punishable under document Ex.PW 26/B is said to be the most sec.l20-B. The offence of abetment created important. The High Court has accepted it "as under the second clause of sec. 107 requires that revealing a coherent story of participation of the there must be something more than a mere accused in the conspiracy." The High Court also conspiracy. There must be some act or illegal said: "the document shows beyond doubt that omission in pursuance of that conspiracy. That Balbir Singh was all along in the picture and would be evident by the wordings of sec. 107 associated with Beant Singh and Satwant Singh". (Secondly): "engages in any conspiracy for Before us, the criticisms against this document the doing of that thing, if an act or illegal omission are various and varied. It may be stated and takes place in pursuance of that conspiracy " indeed cannot be disputed that the genuineness The punishments for these two categories of of the document is inextricably connected with crimes are also quite different. Section 109 IPC is the arrest and search of the accused at Najafgarh concerned only with the punishment of abet- Bus Stand. The document was recovered from ments for which no express provision is made the accused upon arrest and search made under under the Indian Penal Code. A charge under sec. sec. 51 of the Code. If the arrest cannot carry 109 should, therefore, be along with some other conviction then the recovery automatically falls to substantive offence committed in consequence of the ground. Not merely that, even the allegation abetment. The offence of criminal conspiracy is, that the accused had absconded vanishes to thin on the other hand, an independent offence. It air. is made punishable under sec. 120-B for which a charge under sec. 109 IPC is unnecessary and 123. The police at the earliest moment suspected indeed, inappropriate. The following observa­ Balbir Singh as a person involved in the conspir­ tion of Das, J., in Pramatha Nath Taluqdarv. Saroj acy to murder the Prime Minister. After midnight, Ranjan Sarkar (1962 (Supp) 2 SCR 297 at 320) they arrived at his residence. They knocked on also supports my view: the door and made him to get up from his bed. They searched his house and found nothing "Put very briefly, the distinction between incriminating against him. They took him to the offence of abetment under the second Yamuna Velodrome doubtless upon arrest. The clause ofs. 107 and that of criminal conspiracy plain fact is that Balbir Singh was kept under under S.120-A is this. In the former offence a custody throughout the day. At 6 PM, he was seen * mere combination of persons or agreement at the Yamuna Velodrome by Rameshwara Singh between them is no enough. An act or illegal (PW 51). The case of the prosecution however, omission must take place in pursuance of the is that Balbir Singh was released thereafter and conspiracy and in order to the doing of the he was absconding till he was arrested on Decem­ thing conspired for; in the latter offence the ber 3,1984 at Najafgarh Bus Station. The accused mere agreement is enough, if the agreement is challenges this version. The Courts do not inter­ to commit an offence. fere in the discretion of the police in matters of arrest, search and release of persons suspected in So far as abetment by conspiracy is con­ criminal cases. But the courts do insist that it cerned, the abettor will be liable to punish­ should be done according to law. If the prosecu­ ment under varying circumstances detailed in' tion say that that the accused was released from ss.l08to 117. It is unnecessary to detail those custody and the accused denies it, it will be for circumstances for the present case. For the I 86 the prosecution to place material on record in case, learned Additional Solicitor General relied support of the version. Admittedly, there is no upon the averments in the application moved by record indicating the release of Balbir Singh the police for remanding the accused to police from Yamuna Velodrome. The explanation custody. It was stated in the remand application given is that Yamuna Velodrome being not a dated December 4, 1984 that Balbir Singh had Police Station, registers were not maintained to absconded and was not available for interroga- account for the incoming and outgoing suspects, tion. It was also stated therein that Balbir Singh It is hardly an explanation where life and death was arrested at Najafgarh Bus stand on December questions are involved. I M.M remanded the accused to police custody till 124. Again, the question of absconding by the December 6. The order of remand was signed by accused remains unanswered. First, there is no eued material to lend credence to this serious allega- police officer did not object to the allegations tion. Nobody has been asked to search him. No ma(je against him in the remand application. I do police party has been sent to track him. No not think tiiai this contention requires serious procedure contemplated under law has been considerate .#•!. The averments in the remand taken. Second, there is no evidence from which apchcatior are only self-serving, The place the accused came and landed at Najafgarh the accused cannot be construed as his admission Bus Stand. Kochar (PW 73) has deposed that he 0f those allegations. • had secret information at 2 PM on December 3, 1984 that the accused was likely to visit Najafgarh 126. There is yet another feature to which I Bus Stand. He went along with Sant Ram (PW should draw attention. The prosecution wantto 35), Sub-Inspector of Crime Bench. There they establish the recovery of Ex.PW 26/B from the saw the accused at the Bus Stand. Before he accused by other contemporaneous document. was arrested, Kochar personally interrogated Reference in this context is made to the Malkana him at the electricity office near the Najafgarh Bus Register of the Tughlak Road Police Station. Stand. The interrogation went on for more than Entry 986 in the Malkana Register, according to one hour. Yet, Kochar could not locate the place the learned Additional Solicitor General, con­ front where the accused came to Najafgarh Bus tains verbatim copy of the seizure memo (Ex.Pw Stand. Upon arrest, it is said that the police have 35/A) and it is indicative of the fact that Ex. Pw * recovered certain articles including Ex.PW 26/B 26/B was recovered from the accused upon his under the seizure memo (Ex.Pw35/A). But there arrest and search. Here again there is some is no independent witness for the seizure memo, difficulty. There is an endorsement in the Mai- Third, no question as to absconding was put to the kana Register stating that the DTC ticket which accused in the examination under sec. 313 of the the accused carried and the paper containing the * Code. What was put to him under question No.52 dates in English (Ex.Pw 26/B) were not depos- was that he had remained absent from duty from ited. Malkana Register, therefore, is of littieassis- November 4, 1984 till December 3, 1984. That is tance to the prosecution. not the same thing to ask that the accused had absconded during that period. For that question, l27-In view <>f these infirmities, the arrest of the the accused replied that he was under police accused at Najafgarh Bus Stand does not inspire detention from November 1, 1984 till December confidence. This by itself is sufficient to discard 3,1984 and there was no question of his attending 6/B the duty during that period. He has also stated *he contents of the document which has been that he was formally arrested on December 3. highlighted by the High Court. The document 1984 and till then he was under Police detention, can be t^ken to be in the handwriting of Balbir Singh to avoid reference to unnecessary evidence. 125. Realising the weakness in this part of the Butthat in my opinion, does not advance the case of prosecution. The document is a sheet of paper

/

» which we find the following entries: s Visited Gurbaksh Singh's house - Dalip "June 1984 & a boy Narinder Singh/ Virender - Army operation 26 - 1000 Visited Gurbaksh's house & - felt like killing learned about the boy

- Put on duty outside No.l SJ.Road Leave for 4/5 days

again at - Dalip Singh October 1984 - Narinder Singh

No.lSJ.Rd. - Proceeded on leave for 30 Leave for 4/5 days days 22nd - Beam Singh July 1984 - Dalip & Varinder Singh visited my house, leave for 4 days - Dalip Singh & Mohinder Singh visited - Dalip took me to Gurbaksh's house where Santa Singh also met. 28

- Dalip Singh & Gurbaksh visited my house 30 - Satwant Mavalankar Hall

* 31 - Went to Ghaziabad 128. If this document is an incriminating piece of - I visited Gurbaksh Singh's house - for evidence, as the High Court has observed, it is Hemkunt rather baffling why the accused, who was sus­ pected to be a conspirator to murder the Prime - I visited Gurbaksh Singh's house - " Minister of the country, should carry the docu­ ment wherever he goes and that too at a place - Back from leave where there were reprisal killings. The accused is not a rustic person. He is a Sub-Inspector of August 1984 - Met Amarjit Singh & Beam Police with several years of service to his credit. I Singh He must have anticipated the danger investi­ - Dalip Singh Virender Singh etc. met at gated so many crimes. He musi have anticipated Bangla Sahib the danger of carrying incriminating document when he was already suspected to be a party to - Mavalankar Hall/Gurupurab at Bangla the deadly conspiracy. Unable to compromise myself with any reason, I sought the assistance of Sahib learned Additional Solicitor General. He too could not give any explanation. Indeed, nobody 3rd Week could offer even a plausible explanation for this unusual conduct attributed to the accused. To my Harpal Singh/Virender mind, to say that the absconding accused - Sub - Beam Singh/Eagle meeting at Inspector was found at a public place in the national capital with an incriminating document - Beam Singh decisi

guard. 4

# "The evidentiary value of the said acts is 138. It is suggested that in view of sec. 10 of the limited by two circumstances, namely, that the Evidence Act, the relevancy of evidence in proof acts shall be in reference to their common of conspiracy in India is wider in scope then that intention and in respect of a period after such f in English Law. Section 10 of the Evidence Act intention was entertained by any one of them. * introduced the doctrine of agency and if the The expression "in reference to their conditions laid down therein are satisfied, the acts common intention" is very comprehensive done by one are admissible against the co­ and it appears to have been disignedly used to « conspirators. Section 10 reads: give it a wider scope than the words "in furtherance of' in the English Law; with the "10. Where there is reasonable ground to result, anything said, done or written by a co­ believe that two or more persons have con­ conspirator, after the conspiracy was formed, spired together to commit an offence or an will be evidence against the other before he w actionable wrong, anything said, done or entered the field of conspiracy or after he left it * written by anyone of such persons in reference + to their common intention, after the time when such intention was first entertained by 140. But, with respect, the above observations that any one of them, is a relevant fact as against the words of sec. 10 have been designedly used to each of the persons believed to be so conspir­ give a wider scope than the concept of conspiracy ing, as well for the purpose of proving the in English Law, may not be accurate. This particu­ existence of the conspiracy as for the purpose lar aspect of the law has been considered by the of showing that any such person was a party Privy Council in Mirza Akbar v. King Emperor to it" (AIR 1940 Pc 176 at 180), where Lord Wright said that there is no difference in principle in Indian 139. From an analysis of the section, it will be seen Law in view of sec. 10 of the Evidence Act. thatsec. lOwill come into playonlywhen the court is satisfied that there is reasonable ground to 141. The decision of the Privy Council in Mirza believe that two or more persons have conspired Akbar's case has been referred to with approval together to commit an offence. There should be, in Sardul Singh Caveeshar v. The State of Bombay in other words, a prima facie evidence that the (1958 SCR 161 at 193) where Jagannadhadas, J., person was a party to the conspiracy before his said: acts can be used against his co-conspirator. Once such prima facie evidence exists, anything "The limits of the admissibility of evi­ said, done or written by one of the conspirators dence in conspiracy case under s. 10 of the in reference to the common intention, after the Evidence Act have been authoritatively laid • said intention was first entertained is relevant down by the Privy Council in Mirza Akbar v. against the others. It is relevant not only for the the King Emperor (supra). In that case, their purpose of proving the existence of conspiracy, Lordships of the Privy Council held that s. 10 of but also for proving that the other person was a the Evidence Act must be construed in party to it. It is true that the observations of Subba accordance with the principle that the thing done, written or spoken, was something done Rao, J., in Sardar Sardul Singh Caveeshar v. State in carrying out the conspiracy and was receiv­ of Mafiarashtra 1964 (2) SCR 378) lend support to able as a step in the proof of the conspiracy. They notice that evidence receivable under 91 s.10 of the Evidence Act of "anything said, avenge for the "Blue Star Operation". There is done or written, by any one of such persons" no acceptable evidence in this regard. From the (i.e., conspirators) must be "in reference to testimony of SI, Madan Lai Sharma (PW 13), all their common intention". But their Lordships that we could gather is that after the "Blue Star held that in the context (notwithstanding the Operation", Balbir Singh was in agitated mood amplitude of the above phrase) the words and he used to say that the responsibility of therein are not capable of being widely damaging 'Akal Takhat' lies with Smt. Gandhi construed having regard to the well-known and it would be avenged by them. This is not to say principle above enunciated." that Balbir Singh wanted to take revenge against the Prime Minister along with Beant Singh. The 142. In the light of these principles, the other High Court did not take into consideration such evidence against Balbir Singh may now be resentment expressed by Kehar Singh (A-3) and considered. The High Court has summarised that indeed it would be proper not to take notice of evidence (leaving out of account the confession such general dissatisfaction. It is not an offence of Satwant Singh and the evidence of Amarjit to form one's own opinion on governmental ac­ Singh) as follows: tion. It is on record that some members of the sikh community felt agitated over the "Blue Star "Summing up, then, the evidence against Operation". The resentment was also expressed Balbir Singh, leaving out of account for the by some of the Sikh employees of the Delhi time being the confession of Satwant Singh and Police posted for PM's security. In fact, the the evidence of Amarjit Singh, the position is chargesheet against all the accused is founded on as follows: He was an officer on security duty those averments. Amarjit Singh (PW 44) at the PM's house. He knew Beant Singh and specifically refers to this in the course of his Satwant singh well. He shared the indignation evidence. Resentment of the accused on "Blue of Beant Singh against Smt. Gandhi for Star Operation" should, therefore, be excluded 'Operation Blue Star' and was in a mood to from consideration. The High Court next de- avenge the same. He went on leave from pended upon the earned leave taken by Balbir 25.6.84 to 26.7.84. On his return he met Beant Singh for the period from June 25 to July 26,1984. Singh and Amarjit Singh. He was present at The High Court rightly did not give significance the occasion of the appearance of the eagle to casual leave applications of Balbir Singh and their association on that date is borne out (Ex.PW 26/E-l to E-5). I fail to see why taking of by Ex.PW 26/B. He is known to have talked earned leave should assume importance. There to Satwant Singh on 30th October, 1984 " is no material that Balbir Singh took earned leave

i 143.1 do not think that the High Court was for any sinister purpose of design. There is no justified in attaching importance to any one of the evidence that during the said period, he met aforesaid circumstances in proof of the conspir­ Beant Singh or anybody else connected with the acy. The High Court first said, Balbir Singh was conspiracy. It is, therefore, totally an innocuous . an officer on security duty at the PM's house. But, circumstance. The High Court next said that like him, there were several Sikh officers on Balbir Singh, on his return from leave, met Beant security duty at the PM's house. It was next stated, Singh and Amarjit Singh. No other specific * Balbir Singh knew Beant Singh and Satwant meeting has come to light except the meeting Singh well. Our attention has not been drawn to referred to by Amarjit Singh (PW 44) which I will any evidence to show intimacy between Balbir presently consider. The High Court lastly relied Singh and Beant Singh or between Balbir Singh upon the act of offering 'Ardas' to falcon on its and Satwant Singh. The High Court next said that appearance at the PM's house in the first week Balbir Singh shared the indignation of Beant of September, 1984. This is also from the evi­ Singh against Smt. Gandhi and was in a mood to dence of Amarjit Singh (PW-44). Assuming that * »

92 falcon did appear and sat on a tree in the PM's statement (Ex.Pw 44/DB) was recorded on house and that Beam Singn and Balbir Singh did December 19, 1984. Both were under sec.161 of offer 'Ardas' on the occasion, there is, as the High the Code. Again on December 21,1984, the third Court has observed, "nothing unusual or abnor­ statement (Ex.PW 44/A) under sec. 164 of the mal about the incident". The sanctity of the falcon Code came to be recorded. In the first statement, as associated with the Tenth Guru is not denied. there is no express involvement of Balbir Singh. * They offered 'Ardas' in the presence of so many The second statement, according to the witness, class IV employees in the PM's house. The last act was recorded at his own instance. He deposes of Balbir Singh, referred to by the High Court, before the Court: was his meeting with Satwant Singh on October 30, 1984. That has been referred to by Satish "It did not occur to me that assassination Chander Singh (PW 52), whose evidence as was the handywork of Balbir Singh and Kehar earlier seen has got only to be referred to be Singh after I had learnt about the firing and rejected. In my opinion, all the facts and circum­ death of Smt. Indira Gandhi. I on recalling stances above recited are either irrelevant or earlier talk realised on 24.11.1^84 that the explainable. No guilty knowledge of the contem­ assassination of Mrs. Indira Gandhi was the plated assassination of the Prime Minister could handywork of Shn Balbir Singh and Shri be attributed to Balbir Singh on those facts and Kehar Singh. Then I went to ShriR.P. Sharma circumstances. who recorded my statement on 24.11.1984.//

T* is correct that I recall things bit by bit. It is correct 144. It now remains to be seen whether the that there is a difference in my statement Pw 44/ evidence of Amarjit Singh (P W 44) is acceptable DA and Pw 44/DB. It is because many ques­ or whether it is inherently infirm and insufficient. tions were not put to me earlier and, therefore, There are grave criticisms against this witness. I I did not mention them in my first statement." will only examine some of them. The relationship between him and Balbir Singh was anything but He thus admits that there is difference between cordial. It was indeed casual. They were not on the first and second statement. But the High visiting terms. Amarjit Singh was not even invited Court said that there is no improvement or after to attend the marriage of Balbir Singh. That was thought so as to implicate Balbir Singh. The the type of connection that existed between approach of the High Court appears to be them. Yet, Amarjit Singh deposes that Balbir incorrect. Amarjit Singh (PW44) states before the Singh and Beant Singh used to keep him informed Court: regularly about their plan of action to murder the Prime Minister. He wants the court to believe that " In the firstweekof August, 1984,1 had he was in a position to advise the conspirators a talk with Beant Singh. Thenjhe told me that against any such move. It is too difficult to accept he would not let Mrs. Indira Gandhi unfurl the this self styled advisor. As a faithful security flag on 15th August. Shri Balbir Singh also used . officer, he was duty bound to alert his superiors to tell me that if he could get remote control about any danger to the Prime Minister. He bomb and his children are sent outside India, knew that responsibility as he admits in his evi­ then he also could finish Mrs. Indira Gandhi. - dence, but failed to perform his duty. To place I used to think that he was angry and I used to reliance on his testimony would be to put a tell him that he should not think in these premium on his irresponsibility. terms

XX XX XX XX XX 145. The police have recorded three statements * from Amarjit Singh on three different dates. The first statement (Ex.Pw 44/DA) was recorded on In the third week of October, 1984^Balbir November 24, 1984. After 25 days, the second Singh told me that Beant Singh and his family have been to Golden Temple along with 93 Kehar Singh, her Phoopha. He further told evidence against the accused. When by all the that SI Beant Singh and Constable Satwant testimony in the case, Balbir Singh's involvement Singh had taken Amrit in Sector VI, R.K. in the conspiracy is not established, the confes­ Puram, New Delhi at the instance of Shri sion of Satwant Singh cannot advance the Kehar Singh." prosecution case. Even otherwise, the reference in the confession as to the conspiracy between 146. In the first statement (Ex.PW44/DA), there Balbir Singh and Beant singh was not within the is no reference to Balbir Singh telling the witness personal knowledge of Satwant Singh. He refers that if he could get remote control bomb and his to Beant Singh consulting Balbir Singh and children are sent outside India, he could also "advising" to kill PM. It is not clear who told him finish Mrs. Indira Gandhi. There he has stated: and when? Such a vague statement is of little use even to lend assurance to any acceptable case "In the end of September, 1984, SI Balbir against Balbir Singh. Singh met me once in the Prime Minister's house and told me that Beant singh wanted to 150. In my judgment, the evidence produced by kill the Prime Minister before 15th of August. the prosecution against Balbir Singh is defective He (Beant Singh) had agreed to kill her as well as deficient. It is safer, therefore, to err in (Prime Minister) with a grenade and remote acquitting than in convicting him. control but this task was to be put off because 23 the same could not be arranged, actual words KEHAR SINGH (A-3): being 'IN DONO CHEEZON KAINTEZAM NAHIN HO SAKA IS UYE BAIT TAL 151. Kehar Singh was an Assistant in the Direc­ GAYE'." torate General of Supply and Disposal, New Delhi. The case against him is: That he was a 147. Again in the first statement (Ex.PW 44/DA) religious fanatic. He had intense hate against Mrs. what he stated was: Indira Gandhi for causing damage to the Akal 0 •. Takhat by the "Blue Star Operation". He was in a "In the third week of October, 1984, Beant position to influence Beant Singh, since he was Singh, SI met me and told me that he had the uncle of Beant Singh's wife called as 'Poopha'. procured one constable, actual words being He converted Beant Singh and through him Sat­ 'October, 1984 FE TEESRA HAFTE MAIN want Singh to religious bigotry. He made them to BEANT SINGH MUJHE MILA AUR USNE undergo "Amrit Chakhan Ceremony" on October BATAYA KE USNE EK SIPAHI PATAYA * 14, 1984 and October 24, 1984 respectively at HAT and that now both of them would put an Gurudwara, R.K. Puram, New Delhi. He also r end to Smt. Indira Gandhi's life very soon." took Beant Singh to Golden Temple, Amritsar on October 20,1984. 148. The discrepancies between the first version and the evidence in Court are not immaterial. 152. The prosecution, in support of the case that They are substantial and on material points. The he was a party to the conspiracy to murder Mrs. witness is putting the words of Beant Singh into Indira Gandhi, relied on the following: the mouth of Balbir Singh and thereby creating circumstances against the latter. (1) Ujagar Sandhu incident; (2) Darshan Singh incident 149. Lastly, the reference is made to the confession of Satwant Singh (Ex.PWll//C) to (3) Amrit Chakhan ceremony; and (4) support the prosecution version. But it is as much Amritsar trip. a bad step as others in this case. The confession of a co-accused could be used only to lend 153. Besides, the prosecution relied upon his assurance to the conclusion on the acceptable reaction to "Blue Star Operation", attendance 94 in office, post crime conduct, and a pamphlet in "Gurumukhi" captioned "Indira De Sikh". The told him that he should not weep, but take recovery of gold 'kara' and gold ring belonging to revenge. This has been spoken to by InderBir Beant Singh from the residence of this accused Singh (PW 68). This incident has a story behind. was also depended upon. In the newspaper Tribune' dated November 25, 1984, there was an article (Ex. D.62/X) written 154. Both the courts have generally accepted the by certain Prabhojot Singh. The article goes by prosecution version and held that the conspiracy the headline 'Profile of an Assassin'. It was to asassinate Mrs. Indira Gandhi was hatched out written therein: ly all the three persons, that is, Kehar Singh, 3eant Singh and Satwant Singh. "There was a sudden transformation in the thinking of Beant Singh after the Army action. 155.1 will first try to eliminate the irrelevant He started accompanying his uncle Kehar Singh, evidence against this accused. The prosecution an Assistant in the officer of the Director General examined three witnesses to prove the reaction of Supplies and Disposal to Gurudwara Moti Bagh. the accused to "Blue Star Operation": O.P. In July, a noted Ragi from Punjab performed Sharma (PW 31), Darshan Singh Jaggi (Pw 32), "viragkatha" at the Gurudwara. Beant Singh was and Krishan Lai Uppal (PW 33). These witnesses moved and reportedly starting crying. It was at have testified that Kehar Singh was very unhappy this stage, Kehar Singh told him not to cry, but to at the consequences of "Blue Star Operation" take "revenge"." and he considered that Smt. Gandhi was respon­ sible for the same. In fairness to the accused, it 157. The investigating agency has admittedly shall be kept out of account for the reasons given secured that Newspaper well in time. It was by me while discussing the case of Balbir Singh. preserved in their office file. K.P. Sharma (P W 70) I shall also exclude from consideration the has deposed to this. But he examined PW 68 only pamphlet captioned "Indira De Sikh" (Ex,P.53) on July 3.1985, that is, after the accused were and the connected evidence of Raj Bir Singh (PW committed to take their trial. It is said that the 54), Bal Kishan Tanwar, ACP (PW 63) and Daya news item in Tribune is very vague and despite the Nand (PW66). That pamphlet in "Gurumukhi" best efforts, none except PW 68 could be secured no doubt, contains vitriolic attack on Mrs. Indira till July 3. This is unacceptable. The said article Gandhi. But it was recovered from an open furnishes sufficient leads; like "Virag Katha" drawer of the office table of Kehar Singh when he noted Ragi, Moti Bagh Gurudwara, the month was not in office. It is a printed matter. It does not of July, Kehar Singh and Beant Singh together show that Kehar Singh was the author of it. Nor attending the function, etc. The author of the there is any evidence to indicate that Kehar Singfr article is Prabhojot Singh. The investigating offi­ has anything to do with it. cer could have got some more particulars if Prab­ hojot Singh had been approached. But nobody 156.1 shall not take notice of "Darshan Singh approached him. Nor anybody from the said incident" either. It was alleged to have occurred Gurudwara has been examined. The function in in the Gurudwara, Moti Bagh, New Delhi, a which the noted Prof. Darshan Singh Ragi couple of days before Raksha Bandhan day participated could not have been an insignificant (August 18, 1984). It appears that there was a function. A large number of local people, if not kirtan of Prof. Darshan Singh, who spoke very from far off places would have attended the func­ movingly about the consequences of "Blue Star tion. No attempt appears to have been made in Operation". Kehar Singh and Beant Singh were these directions to ascertain the truth of the said to be present on the occasion. After nearing version given in the Tribune'. PW 68 is a solitary the speech of Prof. Darshan Singh, Beant Singh witness to speak about the matter. He claims to was found to be sobbing. Thereupon, Kehar Singh know Kehar Singh but not Beant Singh. It is not 95 safe to accept his version without corr ooration. 160. Bimla Khalsa further deposed that in the same evening Kehar Singh took meals in her 158. Let me now descend to the relevant material house alongwith her husband and Satwant Singh against the accused. 'Ujagar Sandhu* incident is who later joined them, relevant and may be taken note of. The incident is in connection with celebration of the birthday 161. Apparently, Beant Singh did not like his of a child inSandhu's house to which Kehar Singh wife enquiring about the exchange of secret alone was invited but not Beant Singh. Kehar information between him and Kehar Singh. On Singh, however, persuaded Beant Singh and Mrs. October 20,1984, when they were in Amritsar, Bimla Khalsa (PW 65) to accompany him. They Beant Singh had asked his wife why she had went together and participated in the function. questioned Kehar Singh as to what they were Bimla Khalsa swears to this. It is common ground talking on the roof on October 17,1984. that there were inciting and provocating Bhajans in that function. The provocating Bhajans were 162. It may be pertinently asked: Why did Kehar in the context of destruction of Akal Takhat by Singh and Beant Singh suppress the conversa­ the "Blue Star Operation". But it is argued that tion? Why did Kehar Singh give such reply to there is no evidence that Beant Singh and his wife Bimla Khalsa? If the conversation related to were deliberately taken by Kehar Singh to expose taking of Amrit by Beant Singh or his wife, there them to provocative Bhajans. There may not be was no necessity to have a secret talk, since Beant any such evidence, but it may not be non sequitur Singh and Bimla Khalsa had already taken Amrit when one takes an uninvited guest to such func­ by then. Kehar Singh knew it and in fact he had tion in the circumstances of this case. accompanied Bimla Khalsa for that ceremony. The said conversation, as the High Court has 159. The incident on October 17, 1984 in the observed could be only to further the prosecution house of Beant singh, to which Bimla Khalsa of the conspiracy. Satwant Singh later joining testifies, is more positive. It plainly indicates that them for meals lends credence to this conclusion. Kehar Singh and Beant Singh were combined and conspiring together. She has deposed that Kehar 163. An endeavour is made to impeach Bimla Singh came to her house and was closeted with Khalsa, first, on the ground that she turned Beant Singh on the roof for about 18/15 minutes. hostile, and second, that she was examined belat- There was hush hush talk between them which edly. I must state that merely because she turned could not be over-heard by Bimla Khalsa, as she hostile, her evidence cannot be discarded. That is was in the kitchen. That evoked suspicion in her a well accepted proposition. She has no axe to mind. She did consider if I may use her own words grind against any person. She gains nothing by "their talk as something secret".There, then,she telling falsehood or incorrect things against Kehar enquired from Kehar Singh replied that the talks Singh. She has revealed what she was told and were "with regard to making somebody to take what she had witnessed on October 17,1984inher Amrit". Bimla Khalsa remarked; "that taking own house. There is, therefore, no reason to i Amrit was not such a thing as to talk secretly." discard that part of her testimony. As to the . She was perfectly right in her remark. There second complaint, it is true that the police did not cannot be a secret talk about Amrit taking record her statement immediately after the inci­ ceremony. It is religious function. Kehar Singh dent. That is understandable. She has lost her might have realised that it wauld be difficult to husband. She was in immeasurable grief. She explain his conduct without exposing himself. He ought to be allowed time to compose herself. came with cryptic reply: "There was nothing Both the objections raised against her testimony particular". are, therefore, not sound.

164. Beant Singh appears to have planned to 96 murder Mrs. Gandhi on October 25,1984. It has Beant Singh and Kehar Singh appeared there and been indicated by his own writing on the text of all of them left by the same train. What is the 'Vak' recovered on search of his house at 3 significant to note herein is about the relative AM on.November 1,1984. Balraj Nanda (P W 16) character of Kehar Singh and Beant Singh. Even who searched his house along with others recov- at ^ most sacred place they remained isolated ered a book under the title "Bhindranwale Sant from their wives and children. No wonder, birds of (Ex.P 36) Inside the book, a copy of 'Hukam- ft $ame feathef fl then nama' (Vak) dated October 13, 1984 written in } saffron ink was found (Ex.P.39). On the reverse 167. It is suggested that Kehar Singh being an of Ex.P.39, the following two dates are written: elderly person and a devout religious Sikh was "25.10.1984 -1 Yes. 26.10.1984 - Yes 8 AM to 10 keeping company with Beant Singh to dissuade AM.> > the latter from taking any drastic action against ,"-""_.. ;."".. J L . , Mrs. Gandhi. I wish that Kehar Singh had done 165. This writing has been proved to be that of mat ^ given good advice to Beant Singh. He had Beant singh. It has been established by the the portunity t0 bring Beant Singh back to the Tl -nCl- . - I™a t^?._ ?ySl™™L°[ royal path, but unfortunately, he did nothing of other witnesses. Bimla Khalsa has stated that that kind. If he had not approved the assassination Ex.P.39 is in the handwriting of Beant Singh on of ^ prime Minister> Beam singh would not ^t ^eV^re • ,T?.C T* ; ^ -1 have grafted Satwant Singh to the conspiracy. (PW 24), Additional Director Iiisumte of Cnmi- Second, if Kehaf Si h was rcaU interested in nology and Forensic Science, NewDelhi and S.K. redeemi Beant si h, he would have taken me Sharma (PW 25), Assistant Director (Docu- ^^e of Bimla j^^. He did not do that ment) in the same Institute also confirms that even She was deliberately not taken mt0 confl. fact. dence. She was in fact kept in darkness even 166. Against this background, the visit to though she was inquisitive to know their secret Amritsar assumes importance. On October 20, talk. 1984, Kehar Singh and Beant Singh alongwith 16g ft {$ tme Aat therefa n Q substantive evidence their family members went to Amritsar There from the testimo of Bimia Khalsa that Beant ^/cTo-", JIT6 C ^ u ug, si"gh took Amrit on October 14, 1984 at the W 53 im a a Amritsa? ? >r: a^t 2-3i PM^ an^d ^^SJ^^went to Darbar Sahii b Stance of Kehar Singh. Bimla Khalsa has only _ ...... stated "I cannot say if on the 14th October, 1984, Gurudwara in he same evening. While ladies and Beant si h had taken Amrh at ^ in$tance of chiWrenwerehstemngto^ Kehar Singh in Sector VI, Gurudwara, R.K. Kehar Singh went to see the Akal Takht Bimla p^ bm Qn the ^ Qctober he ^ me Khaka wanted to accompany them to see the Akal ^ he was . tQ take Amrk „ ^ *

Takht/ , but..... she wa. s told to .se e thtUe sam,-.--e on th. e nex....t ever, remains that Beant Singh took Amrit on mormng. What happened on the next day is still October 14, 1984. Kehar Singh was undisputedly more curious^ In the early house PW 53 was t at ^ QQ [Q ^ Bjmla ^ woken up by Kehar Singh arid told that hejwouM took ^ It may not be> therefore> unreasQn_ attend "Asa Ki War-Kirtan" in Darbar Sahib. So fc . , u o» • c-.w • -n. able to state that he must have been present when stating, he went along with Beant Singh. The Beam s{ h aIsotook ^ " ladies.andchildren were leftbehind. They went to from his house supports ^ inference ^ said Darbar Sahib at 8 AM along with PW 53. They that while taking Amrit or thereafter, the person returned home at 11 AM and had lunch with PW is not expected to wear gold ornaments. Beant 53. Beant Singh and Kehar Singh did not join them singh ha(j ,d (Ex p ll • for unch, nor they returned to the house of PW -, * •,-. * M ' "ZK^*r-">)- „ m„c* . .. ;, ,...... , o -i These two articles were recovered by the mves- „53 . PW 53 took ,,•/.the ladies and. children to. Railwa y tigatin„•„,,;_g„ agenc~non„y, troernmm thtu~e housu~ e ofc„ Keha ..r Sine,-. h. Station to catch the train for the return journey. Jr,. „ * HJ|' t(M.. - D ivcnur oingn. J ' i nat is not disputed before us. BeaaLSingh must 97 have entrusted the articles to Kehar Singh at the time of his taking Amrit. It also shows the signifi­ SATVVANT SINGH (A-l): cant part played by Kehar Singh in taking Amrit by 172. He • was a constable in the Delhi Police _ Beant Singh. m recruited on January 12, 1982. After training, he 169. It is true (hat taking Amrit by itself may not was posted in the Fifth Battalion of the Delhi have any sinister significance. It is a religious Armed Police (DAP). After further commando . * ceremony and * Amrit' is taken only-to lead a life training, he was posted in the Second Battalion of spartan purity giving up all worldly pleasures of the DAP. Thereafter, he was posted in the'C \ and evil habits'. But, unfortunately, the assassins company of the Battalion at the lines on Teen have misused that sacred religious ceremony for Murti Lane where he reported for security duty ulterior purpose. at the Prime Minister's house on July 2, 1983.

170. The post crime conduct of Kehr Singh is 173. There are three charges against Satwant conclusive of his guilt. He was cognizant of all the Singh: details of the coming tragedy and waiting to re­ (i) Section 302 read with 120-B and 34 ceive the news on that fateful dav. That would be IPC for murdering the Prime Minister Mrs. clear from the testimony of Nand Lai Mehta (PW Indira Gandhi; (ii) Section^ IPC for the at­ 59) who was an office colleague of Kehar Singh. tempted murder of Rameshwar Dayal (PW 10); He has deposed that Kehar Singh had met him in and (iii) Section 27 of the Arms Act. the third floor corridor of the office at about 10.45 AM on October 31, 1984. By that time, the news 174. In proof of these charges, the prosecution of the murderous attack on the Nation's Prime have examined three eye witnesses to the Minister cartie like a thunderbolt from a clear sky. occurrence. Narain Singh (PW 9), Rameshwar The messenger had told that Somebody'had shot Dayal (PW 10) and Nathu Ram (PW 64). Besides, at Mrs. Gandhi. PW 59 then enquired from Sukhvir Singh (PW 3), Raj Singh (PW 15), Desh- Kehar Singh as to what had happened. Kehar pal Singh (PW43) and GangaSingh (PW 49) have Singh replied that "whosoever would take con­ also been examined. ! frontation with the Panth, he would meet the same fate." So stating, he went away, It may be 175. On October 31, 1984, in the usual course, noted that at that time, there was no specific Satwant Singh was put on security at Beat No.4 information to the outside world whether any Sikh in the Akbar Road House (not at the TMC Gate). had shot the Prime Minister or anybody else. This has been confirmed by the daily dairy Unless Kehar Singh had prior knowledge, he maintained at Teen Murti (Ex.PW 14/C) -(Entry could not have reacted with those words. No.85). Raj Singh (PW 15) has testified to this entry. Satwant Singh was given armfand ammuni­ 171. To sum up: His close and continued tion. He was issued SAP Carbine (Sten-gun) association with Beant Singh; his deliberate having Butt No.80 along with 5 magazines and I attempt to exclude Mrs. BimlaKhalsa from their 100 live rounds of 9 mm ammunition. In company and conversation; his secret talk with acknowledgment thereof, he has signed the reg­ Beant Singh followed by taking meals together ister (Ex.PW 3/A). Sukhvir Singh (PW 3) has with Satwant Singh; his keeping the gold 'Kara' deposed to this. With the said arm and ammuni­ and-'ring' of Beant Singh; and his post crime tion, Satwant Singh left Teen Murti Lines at conduct taken together along with.other material about 6.45 AM to take up his duty at Beat No.4. I But he did not go to that spot. The case of the on record are stronger as evidence of guilt than prosecution is that Satv/ant Singh had got ex­ even direct testimony. I agree with the conclu­ changed his place of duty to carry out the conspir- sion of the High Court that Kehar Singh was one . acy he had with Beant Singh to murder Mrs. of the conspirators to murder Mrs. Gandhi, * Gandhi. But, on the other hand, the accused though not for all the reasons stated. 98 states that he had been "decoyed" to the TMC wards Beant Singh to secure him. He saw Mr. Gate by certain persons; that he was injured by Bhatt, the personal guard of Mrs. Gandhi and • the cross firing; that he fell down and was not in ITBP personnel arriving there and securing Sat- , a position to shoot the Prime Minister or any­ want Singh and Beant Singh. He noticed that body. The fact, however, remains that Satwant Rameshwar Dayal (PW 10) was also hit by bullets. < Singh got exchanged his place of duty with that of He has further stated that the Doctor came run­ Deshpal Singh (PW43). It appears that one ning. Mrs. Sonia Gandhi too. They lifted Mrs. Head Constable Kishan Lai No. 1109 allowed the Gandhi and placed in the rear seal of the escort I sentries to exchange their places since Satwant car that was brought there. Mrs. Gandhi was Singh was suffering from loose motions and TMC taken to the AIIMS accompanied by the Doctor Gate being nearer to a latrine. So, Deshpal Singh and Mrs. Sonia Gandhi on the back seat and Mr. took up position at Beat No.4 while Satwant Singh Bhatt, Mr. Dhawan and Mr. Fotedar on the front at TMC Gate. seat of the car. He also went to the hospital where 176. Three eye witnesses to the occurrence: (i) Kochar (PW 73) came and took his statement. Narain Singh; (ii) Rameshwar Dayal; and (iii) That statement formed the basis of the F.I.R. in Nathu Ram corroborate with each other on all this case. material particulars. They had accompanied the 178. There can be little doubt as to the presence Prime Minister on the fateful day. They were able of Narain Singh at the spot. His evidence receives to see vividly, describe correctly and identify full corroboration from the other two eye wit­ properly the persons who gunned down Mrs. nesses. The umbrella (Ex.P.19) which he was Gandhi. Both the Courts below have accepted holding has been recovered from the place under them as natural and trustworthy witnesses. Such the seizure memo (Ex.PW 5/H). a conclusion based on appreciation of evidence is 179. Rameshwar Dayal (PW 10) is an A.S.I, of binding on this Court in the appeals under Art.. Police. He was on security duty at the PM's 136. I may, however, briefly refer to their evi­ residence. He was also the water attendant in the dence. pilot car of the Prime Minister. From his evi­ 177. Narain Singh (PW 9) is a Head Constable. dence, it will be seen that he had gone to the He was on duty from 7.30 AM on October 31, pantry in the PM's house and got thermos flasks 1984. He has deposed that at 8.45 AM, he came with water, napkins and glass. He was informed to know that the Prime Minister had to go to No. 1 that the Prime Minister had an engagement with Akbar Road, to meet certain foreign T.V. a T.V. Team at the Akbar RoiH^premises. He representatives. He took up an umbrella and went there and saw the T.V. Team. He met the remained ready to follow the Prime Minister. gardner and asked for a 'guldasta', but the gard- According to him, at 9.10 AM, Smt. Gandhi ner said that he would prepare and get it. In the emerged out of the house followed by Mr. R.K. meantime, he saw the Prime Minister coming out . Dhawan Private Secretary and Nathu Ram (PW of the house and proceeding towards Akbar Road 64). Hehasstated that he moved overto the right premises followed by Mr. R.K. Dhawan and side of Mrs. Gandhi holding the umbrella to others. He also joined the entourage. Rest of his • protect her against the Sun. They proceeded evidence is identical in terms with that of Narain towards the TMC Gate. The TMC Gate was kept Singh (PW 9). According to him, he ran to shield open, where Beant Singh was on the left side and Mrs.Gandhi, but was hit by bullets. Undisputedly, ' Satwant Singh on the right side. When they were he had suffered bullet injuries. He was admitted about 10 or 11 feet from the TMC Gate, Beant to the AIIMS for treatment. The Medico-legal singh took out his revolver from his right dub and Certificate (MLC) issued by the AIIMS (Ex.10/ fired at Mrs. Gandhi Immediately, Satwant Singh DA) supports his version. No further corrobora­ also started firing at Mrs. Gandhi with his Sten- tion is necessary to accept his evidence. gun. Mrs.Gandhi fell down. He threw away the umbrella, took out his revolver and dashed to- 180. Nathu Ram (PW 64) is also an eye witness. I

He was a dedicated servant of Mrs. Gandhi. He incident with which we are concerned. He must was always with Mrs. Gandhi not only when she have been shot evidently inside the guard room was in power but also when she was out of power. where he was taken for safe custody by the ITBP His duty was to clean and dust the library-cum- personnel. The defence put forward by Satwant bed room of the Prime Minister and then stand Singh that he was decoyed to the TMC gate where by in attendance. He has deposed that he was he received bullet injury is therefore, patently informed by Mrs. Gandhi about the change of false. programme in the morning of October 31 and was 183. The eye witnesses are not strangers to the asked to ring up to the make-up persons to come. assassins. They were familiar faces in the security Accordingly, he called to make-up persons at 7.35 ring of the Prime Minister. Their presence with * AM. After Mrs. Gandhi was ready and left the Mrs. Gandhi at the spot was not accidental, but room at about 9.05 AM, he followed her. He has consistent with their duties. There was no scope testified that Mrs. Gandhi was accompanied by for mistaken identity since everything happened Mr. R.K. Dhawan and followed by Narain Singh in the broad day light. Therefore, the evidence and Rameshwar DayaL His evidence as to the thus far discussed itself is sufficient to bring home relative acts of the two assassins is consistent with the guilt to Satwant Singh on all the charges the version of PW 9 and PW 10. As a faithful levelled against him. servant, he has helped to lift and carry Mrs. * Gandhi to the car. His presence at the spot was 184. If necessary, the records contain evidence as most natural. His evidence is simple and straight­ to the identification of arms and ammunition forward. entrusted to the assassins. I have already referred to the evidence relating to the sten-gun (Ex.P.4) 181. Ganga Singh (PW 49) has spoken to events and ammunition delivered to Satwant singh. The that immediately followed the assassination of sten-gun along with 25 empties of the sten-gun the Prime Minister. He is a lance-naik in the ITBP was recovered from the place of incident under commando force placed on duty at the PM's the seizure memo (Ex.PW 5/H). The revolver residence. When he heard the sound of fire arms (Ex.P. 1) delivered to Beant Singh and 5 empties of from the TMC Gate, he ran to the spot as duty the revolver were also collected at the spot. Dr. bound. He found Mrs. Gandhi on the ground lying T.D. Dogra (PW 5) while conducting limited post­ injured. He saw two Sardars out of whom one was mortem examination has taken two bullets from in uniform whom he identified in the Court as thebodypfMrs.Gandhione from injuryNo.l and Satwant Singh. He has deposed that his Inspector the other from injury No.2. These bullets along Tarsem Singh who also came there made the with the arms recovered from the spot were sent Sardars hands up. He and other ITBP personnel for the opinion of G.R. Prasad (Pw 12), Principal secured the Sardars and took them to guard room. Scientific Officer, Ballistic Division, GFSL, New At the spot, he took possession of ruck-sack Delhi. P. W. 12 has testified that the bullets recov­ (Ex.P.21) from Satwant Singh. The ruck-sack ered from the body of Mrs. Gandhi are traceable contained four magazines of 9 mm carbine, two of to the sten-gun and the revolver. Similar is the which were full (one with 20 bullets and the other evidence with regard to the other bullets recov­ with 30 bullets) and two empty. ered from the place of incident. The record also 182.The presence of SatwantSinghatTMCGate contains evidence about the total tally of the is also not in dispute and indeed it was admitted bullets fired and the empties collected. It is by him while answering question No.51(A) in the needless to discuss that evidence here. examination under sec.313 of the Code. What is 185. It is, however, argued for the accused that the important to notice from the testimony of Ganga finger prints found on the sten-gun were not Singh is that Satwant Singh when apprehended by tested for comparison and the two bullets recov­ bimwas not injured. He was taken safely toguard ered from the body of Mrs. Gandhi were not room. He did not receive any bullet injury in the examined for the traces of blood or tissues. It is *

100 further said that the post-mortem examination ity the extreme penalty need not be given. It may conducted by Dr. Dogra ought to have been full be given only in rarest of rare cases where there and complete to clinch the issues. There is no is no extenuating circumstance. In Machhi Singh substance in these contentions. It is not necessary v. State of Punjab (1983(3) SCR 413), this Court to confirm the finger prints on the sten-gun, as again indicated some principles as to what consti­ that of the accused when it is proved that that sten- tute 'The rarest of rare cases" which warrant the . gun was delivered to him. The examination of the imposition of death sentence. The High Court has bullets recovered from the body of Mrs. Gandhi carefully examined these principles and given for the traces of blood or tissues is also reasons why in this case, the death sentence alone | unnecessary, since one of the bullets taken by the should be awarded. Doctor tallied with the sten-gun (Ex.P.4). 188. In my opinion, the punishment measured is Equally, limited post-mortem examination deserved. There cannot be two opinions on this conducted by Dr. Dogra would not affect the issue. The "Blue Star Operation" was not di­ merits of the case. It is not always necessary to rected to cause damage toAkalTakht. Nor it was have a complete post-mortem in every case. intended to hurt the religious feelings of Sikhs. Section 174 of the Code confers discretion to the The decision was taken by the responsible and Police Officer not to send the body for post­ responsive Government in the national interest. mortem examination if there is no doubt as to the The Prime Minister (late) Mrs. Indira Gandhi cause of death. If the cause of death is absolutely was, however, made the target for the conse­ certain and beyond the pale of doubt or contro­ quences of the decision. The security guards who versy, it is unnecessary to have the post-mortem were duty bound to protect the Prime Minister at done by Medical Officer. In the instant case, there the cost of their lives, themselves became the was no controversy about the cause of death of assassins. Incredible but true. All values and all Mrs. Gandhi. A complete post-mortem of the ideals in life; all norms and obligations are thrown body was therefore uncalled for. to the winds. It is a betrayal of the worst order. It 186. From the aforesaid direct testimony coupled is the most foul and senseless assassination. The with the other clinching circumstances available preparations for an the execution of this egre­ on record, there is not even an iota of doubt about gious crime do deserve the dread sentence of the the crime committed by Satwant Singh. I agree law. with the High Court that he is guilty of al the 189. Having regard to the views which I have charges. In this view of the matter, it is unneces­ expressed, I too would dismiss the appeals of sary to burden this case by reference to confession Kehar Singh and Satwant Singh, but allow the of Satwant Singh. 4 appealof Balbir Singh by setting aside his convic­ 187. This takes me to the question of sentence. tion and sentence, and acquitting him of all the Section 354 (3) of the Code, 1973 marks a charges. significant shift in the legislative policy of award- 190. Before parting with the case, I would like to ing death sentence. Now the normal sentence for express my gratitude to murder is imprisonment for life and not sentence of death. The Court is required to give special counsel amicus curiae for their willingness to reasons for awarding death sentence. Special assist, on behalf of the accused. With their ' reasons means specific facts and circumstances profound learning and experience, they have obtained in the case justifying the extreme pen­ argued the case remarkably well. I must also place alty. This Court in Bachan Singh v. State of it on record my appreciation about the deep Punjab (1980 (2) SCC 684) has indicated certain learning and assiduity with, which Mr. G. guidelines to be applied to the facts of each Ramaswami, Additional Solicitor General as­ individual case where the question of imposing sisted on behalf of the State. He was extremely fair death sentence arises. It was observed that in to the Court as well as to accused. cases where there is no proof of extreme culpabil- IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

REVIEW IN CRIMINAL

1. Kehar Singh

2. Satwant Singh ... Petitioners

Tt Versus

State (Delhi Administration) • • Respondent

ORDER

We have carefully gone through the review petitions. All the relevant points raised in these review petitions have received our fullest consideration in our Judgment. We have examined and re-examined every material on record unmindful of limitations in appeals under Article 136 of the Constitution of India and therefore we see no reason to entertain these review petitions. The review petitions are, therefore, dismissed.

Sd/- (G. L. Oza)

Sd/- (B. C. Ray)

New Delhi: Sd/- September 7, 1988. (K. Jagannatha Shetty)

-